Ripani v Century Legend Pty Ltd

Agreed facts 17 Apartment 1401 was one of the premium apartments to be located on the 14th floor on the western side of the Victoriana building: PJ [2]. 18 In 2016, Century Legend: (a) prepared promotional materials to be used in marketing the Victoriana, including scale models and a hard-bound brochure containing various images, including computer generated 'renders', of the anticipated appearance of the Victoriana once constructed; and (b) engaged a firm of real estate agents, CBRE, to assist in the marketing of the Victoriana and to establish a display suite located at the proposed development site of the Victoriana: PJ [3]; FC [9]. 19 The promotional materials included a "hero render" depicting the proposed western aspect of apartment 1401, specifically a large free span opening between the inside of the living areas and the outside terrace: PJ [5], [7], Annexure I; FC [10], [11]. 20 The image of apartment 1401 in the render is at Annexure A at the conclusion of these reasons and is reproduced below: 21 Though the render was specific to apartment 1401, Century Legend selected it as an image to be used more widely in promoting and marketing the Victoriana and it was displayed as a large exhibit on the wall of the display suite established at the proposed development site of the Victoriana: PJ [6]; FC [11]. 22 Mr Kevin Tran was a CBRE employee engaged to sell apartments in the Victoriana to customers. Mr Tran's usual practice was to sell off the plan apartments by reference to marketing materials, including any visual renders, building models, floor plans and other materials, which materials were available in the Victoriana's display suite: PJ [19]. 23 Mr and Mrs Ripani attended the display suite in mid to late January 2017, met with Mr Tran and expressed an interest in apartments with an outdoor area for entertaining guests: PJ [144]. 24 On 22 March 2017, Mr Tran sent promotional material to Mr and Mrs Ripani giving them details of apartment 1401, including a copy of the render: PJ [145]. 25 Upon reviewing the Carr Design floor plan that was attached to an email dated 22 March 2017 from Mr Tran to Mr Ripani, Mr and Mrs Ripani could not have appreciated that the large free span opening depicted in the render could not be achieved: PJ [153]. 26 On or about 31 March 2017, Mr and Mrs Ripani visited the display suite for the Victoriana, and Mr Tran provided Mr and Mrs Ripani with a hard-bound brochure promoting the Victoriana. Mr and Mrs Ripani told Mr Tran they were interested in moving to an apartment with an outdoor pool and an area for entertaining, in which the internal and external areas could be seamlessly converted into one space: PJ [42], [44]. 27 The render represented to Mr and Mrs Ripani that: (a) apartment 1401, when constructed, would accord with the render and in particular would include the flow through design; (b) as at March 2017 Century Legend intended to construct the Victoriana and apartment 1401 so that it would accord with the render and in particular intended to include the flow through design; and (c) the building design shown in the render was achievable given existing building methods, (Representations): PJ [92], [95], [98]; FC [13]. 28 The Representations were misleading and deceptive and there was no reasonable basis for making the Representations: PJ [12], [14], [97]. 29 Century Legend was warned by its architectural firm Rothelowman in October 2016 and in June 2017 that the renders were misleading. Century Legend decided to continue using the renders that had been produced to market the Victoriana but to include the words "artist's impression" on each of those renders: PJ [23], [54]; FC [14]. 30 Mr Tran told Mr and Mrs Ripani that apartment 1401 would be constructed as depicted in the render, with an expansive opening onto the terrace from the internal living areas: PJ [32]. 31 Century Legend knew that it was not possible to construct apartment 1401 with a large free span opening as depicted in the render: PJ [13]; FC [14]. 32 The disclaimer clauses in the Contract did not erase the effect of Century Legend's anterior misleading conduct: PJ [77]; FC [213]. 33 On 1 April 2017, Mr and Mrs Ripani signed the Contract to purchase apartment 1401 "off the plan" for $9.58 million. The Contract was subject to satisfaction of a number of conditions, including a handwritten condition numbered 43 which read: "Subject to satisfactory of [sic] floor plan within 21 days (special condition 43)": PJ [2], [104]; FC [5], [22]. 34 Mr and Mrs Ripani relied on the render to sign the Contract: PJ [41]; FC [213]. 35 The large free span opening of the doors as depicted in the render was an important feature to Mr and Mrs Ripani and central to their decision-making to sign the Contract: PJ [17], [21]; FC [229]. 36 There was attached to the Contract a floor plan of apartment 1401 prepared by Rothelowman marked "draft" dated 16 June 2017 and with the title: "Premium Apartment 1401 OPT E": FC [23], [24] (Option E plan). 37 By 29 August 2017 Mr and Mrs Ripani had reached a state of satisfaction with the Option E plan: PJ [103], [109]. 38 On 29 August 2017, having reached a state of satisfaction with the Option E plan, Mr and Mrs Ripani provided the bank guarantee: PJ [109]; FC [25]. 39 By providing the bank guarantee for the deposit, Mr and Mrs Ripani signified approval of the Option E plan in accordance with special condition 43 of the Contract: PJ [108]; FC [25]. 40 Mr and Mrs Ripani elected to rescind the Contract by bringing the first proceeding: PJ [246].

Floor plans 41 The architectural firm, Carr Design, was originally engaged by Century Legend to design the interior of the high-rise premium apartments in the Victoriana. According to Ms Kate Hart, an interior designer and senior associate at Rothelowman, Carr Design had "walked away" from the Victoriana because they did not believe the renders were an accurate depiction of what was intended to be built: PJ [61]. 42 After Carr Design ceased its involvement, Rothelowman took over the design role in relation to the premium apartments, in addition to their existing involvement in the Victoriana, which included designing the standard apartments located from the ground floor to level 10, as well as designing the common areas and building generally. Ms Hart was directly responsible for assisting purchasers such as Mr and Mrs Ripani in relation to customising the floor plan and fit out of the premium apartments: PJ [106]. 43 The common premise of Mr and Mrs Ripani's dealings with Century Legend was that they would be able to customise the floor plan for apartment 1401: PJ [152]. To that end, Ms Hart had a number of meetings with Mr and Mrs Ripani. The discussions at the meetings on 26 May 2017 and 9 June 2017 are relevant to the question of whether Mr and Mrs Ripani continued to rely on the Representations between April and August 2017. 44 The parties were in dispute as to the floor plans that were produced at the meetings and whether Ms Hart wrote on the floor plans. An understanding of the various iterations of the floor plans is necessary to understand the evidence and the reasons set out below. 45 Table 1 sets out the relevant iterations of the floor plans and meetings relevant to any discussion in relation to the floor plans, although the table is not a finding as to what took place at the meetings or that the floor plans were presented or discussed at any particular meeting: Table 1 Floor plan version Relevant meeting Annexure Court Book Rothelowman plan 7 April 2017 Annexure B 1490 Option A N/A Annexure C 1546 Option A/B 26 May 2017 Annexure D 6300 Option B 26 May 2017 Annexure E 1601 Option C 9 June 2017 Annexure F 1685 Option E Attached to the Contract dated 16 June 2017 Annexure G 6143 Option I 29 May 2019 Annexure H 4455

Relevant issues and applicable principles 46 As stated explicitly in the Full Court's orders, the first issue for consideration in the new trial is the issue of reliance: see the orders and reasons of Button J: Ripani (No 3) at [28]-[30]. The second issue for consideration in the new trial is the orders the Court should make under s 237 of the ACL for compensation and under s 243 of the ACL in the circumstances of this case. 47 Section 237(1) of the ACL provides that a court may, on the application of a person who has suffered, or is likely to suffer, loss or damage because another person has engaged in conduct in contravention of the ACL, make such orders as the Court thinks appropriate against the person who engaged in that conduct. 48 Century Legend submitted that in order for Mr and Mrs Ripani to make out their claim for rescission and damages under the ACL, they must establish that they suffered or were likely to suffer loss or damage "because of" the conduct of Century Legend. Further, it submitted that the onus was on Mr and Mrs Ripani to show that their claimed loss and damage - namely entering into the Contract - was "because of" the misleading render. 49 The statutory language "because of" in s 237 of the ACL means that there must be a causal nexus between the impugned misleading conduct and the loss or damage claimed: Butler v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 at [37] (Gleeson CJ, Hayne and Heydon JJ); Norcast Sarl v Bradken Ltd (No 2) (2013) 219 FCR 14; [2013] FCA 235 at [326] (Gordon J); Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 at 529-30 (Lockhart J). For there to be the necessary causal relationship between the contravention and loss or damage, so as to satisfy the requirements of s 237 of the ACL, it is not essential that the contravention be the sole cause of the loss or damage: Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 at [14] (Gleeson CJ). 50 It is first necessary to consider the question whether Mr and Mrs Ripani continued to rely on the Representations and acted to their detriment. The question whether the loss and damage claimed was a cause of the impugned conduct arises in the context of the second issue, namely the relief the Court should grant in the circumstances of this case.

First issue - reliance 51 The first issue in the new trial is whether Mr and Mrs Ripani continued to rely on the truth of the Representations when Mr and Mrs Ripani conveyed to Century Legend that they were satisfied with the floor plan and provided the bank guarantee. 52 Century Legend submitted that the Court should find that Mr and Mrs Ripani did not rely on the Representations when the Contract was formed in August 2017 because: (a) Ms Hart told Mr and Mrs Ripani in May and June 2017 what the glazing break up along the western façade of apartment 1401 would really be like, and Ms Hart's evidence in this regard was compelling and should be accepted; and (b) the Court ought to reject as not credible Mr and Mrs Ripani's evidence that they did not appreciate, prior to concluding the Contract, the nature of the openings depicted on the Rothelowman plans.

What Ms Hart told Mr and Mrs Ripani about the openings on the western façade 53 Century Legend submitted that the evidence shows that by August 2017 Mr and Mrs Ripani were no longer misled by the depiction of the opening in the render. This was because in meetings on 26 May 2017 and 9 June 2017, Ms Hart had explained to them where the doors were with reference to the floor plans (the Options A/B, B and C plans). 54 It is first necessary to consider the evidence of the attendees at the meetings on 26 May 2017 and 9 June 2017 and then Century Legend's submissions that the Court should accept Ms Hart's evidence as to what she told Mr and Mrs Ripani at those meetings.

26 May 2017 meeting 55 It was accepted that on 26 May 2017, Ms Hart met with Mr and Mrs Ripani at Rothelowman's office in Southbank, Victoria, and that Mr Tran was also present. Century Legend submitted, and I accept, that Mr Peter Hu, Sales Manager at Century Legend, was not at this meeting. 56 Century Legend submitted that at the meeting on 26 May 2017, "[Ms Hart] told [Mr and Mrs Ripani] about the three openings on the western façade and made marks in red pen on the floor plan to show this." Further, Century Legend submitted that Ms Hart "showed [Mr and Mrs Ripani] there was a division of four panels creating the central opening that were 1-1.2m in width, and that they were moveable to create an opening around 4m in width."

(i) Ms Hart's evidence 57 Without reference to the plans, Ms Hart gave evidence in chief about what was discussed at the meeting on 26 May 2017 as including, relevantly, to use her words "the connection between the internal and the external, between the pool deck area and the entertainment area". 58 This was the extent of Ms Hart's evidence about the relevant discussion at the meeting on 26 May 2017 before Ms Hart was shown the floor plans. It is critical to understand the detail and nuances of Ms Hart's evidence in relation to the relevant discussion at the meeting. As a result, it is set out in full. In my assessment of Ms Hart's evidence, what she told Mr and Mrs Ripani at the meeting on 26 May 2017 was vague and inconclusive in purporting to explain the openings on the western façade. 59 Ms Hart's evidence about what was discussed at the meeting after being shown the Option A/B plan was as follows: …We spoke about fireplaces which is the - my handwritten note of "FP" stands for fireplace, and we also spoke about the break-up of the Western facade, so there's my hand red notes showing. And again, as we move from north to south, there is an arrow pointing from the dining room out towards the barbecue area mentioning - meaning that was to be a point of access between the dining room and the barbecue area. That was a - a request that we then - so that is as far north on that plane before the facade then starts to curve around. What was the request?‑‑‑To have that opening as far north so that it's closer between the dining room and the barbecue area, that access between the two, so it's not further down towards the living room, but it's further towards the barbecue and dining room access. There's also, then, my hand red pen mark to show - so if we come to the fireplace, which is the culmination of the serpentine wall, north and south of that, there is some hand mark-ups from me, red pen notes, to show that the top pane - it was my explanation to show that that top panel is a fixed panel. You then have an opening where the panels have been removed, and there's red pen mark there denoting the number of panels that have been removed, and then my red marks to the south which I remember denoting it's a fixed panel. And then south of that, there's two - there's panels removed. It's an opening. And then to the bottom of that, the last panel has also got my red hand mark to say this is a fixed panel. Okay. So what did you say in the meeting to the Ripanis when you were with them on the 26th?‑‑‑We discussed ‑ ‑ ‑ Well, instead of "we discussed" ‑ ‑ ‑?‑‑‑Sorry. The question is what did you say?‑‑‑What did I say? I said that - that - I noted the appliances. I noted that they wanted a large pivot door that would need to be explored. I noted that they wanted fireplaces that would need to be explored as to - to be able to accommodate them. We spoke about - we spoke about the openings on that western facade which - and - and the location of these openings and the location of moving that entrance door between the dining and the barbecue area to which I noted that - that request. Yes. Okay. So after the 26th - just before I leave that, so this is a coloured copy, but can you tell her Honour what colour pens you - this is a colour copy, but could you tell her Honour what colour or kind of pens you used in relation to page 1601?‑‑‑I used a red pen and - and pencil. I - when I make notes, I just pick up whatever is within my vicinity to capture the conversations that we're having or the requests that are being made. So in this, which is 1601, which is a colour copy, I can see my red notations and I can see - because it's a copy - look - a pen - a pencil, rather. And similarly, at 6300, what colour is the writing in?‑‑‑6300. … THE WITNESS: So again here I've used red pen to mark up the plan. 60 Later in her evidence in chief, Ms Hart was asked to return to the meeting on 26 May 2017 and again say what she said to Mr and Mrs Ripani regarding the western façade. Her evidence in response was as follows: So taking you back to your discussions on 26 May, in terms of what you said to the Ripanis in respect of the facade on 26 May, what was it that you said, and what was the reaction of the Ripanis?‑‑‑So we spoke about the western facade, and I was explaining to them the break-up of the facade and the openings. They expressed disappointment, but they - when we spoke about the - the - the larger - the larger opening, which was the four-metre opening, they said that that would be their - because it's the large one, it's their priority. It has got that - as we mentioned before, the connection between the fireplace and the external seating area - and that they would like it to be as large as possible. You said they were disappointed, but could you tell her Honour what you observed in their appearance or what they said to you that leads you to use that word?‑‑‑They said that they - they were disappointed. They - in - in that they wanted the - they wanted the opening to be as - as large as possible, but - so they're saying that they were - they were disappointed in - in the size of the opening, and they wanted the opening to be as large as possible. 61 In cross-examination, Ms Hart was asked to recount the words she used to tell Mr and Mrs Ripani they were not going to get the opening in the render. She gave the following evidence: Try and remember what you said?‑‑‑The facade is broken up into glazing panels of roughly a metre - just over a metre - 1.2 in width, and the - it has to be because of wind loading against the western facade. And the opening - the openings in the facade are a division of those - or are a sum of those window panels. MR STUCKEY: So your evidence is that that's what you said to the Ripanis?‑‑‑As best as I can remember, yes Okay. And what did the Ripanis say to that?‑‑‑That they wanted the window opening to be as wide as possible. Well, you just told - what did you - what did you - you told them that the window panels would be 1.2 metres wide?‑‑‑One to 1.2 metres. Right?‑‑‑Yes, in width. That doesn't tell them anything about how big the opening can be, does it?‑‑‑No. No. I pointed to the - the main opening, which was centred on the fireplace, and counted and showed the number of panels that were being removed to create the opening on the fireplace and also the openings within the entertainment area. And we discussed the openings leading from the dining to the external, and it was ‑ ‑ ‑ No. No, you - sorry?‑‑‑Yes. You've fallen into "we discussed"?‑‑‑Speculate. Okay. Now, what did you say to them about how wide an opening, if you said anything at all ‑ ‑ ‑?‑‑‑Yes. ‑ ‑ ‑ about how wide an opening was possible?‑‑‑My - my words were - I can't remember exactly, but my words were in - that the openings were based on the division of window panels that created up the - that created the façade of the building ‑ ‑ ‑ That still doesn't tell them how wide an opening they can get, does it?‑‑‑No, so I showed that there was a division of four panels created the wide opening and that those panels were 1 to 1.2 - because the façade was still being designed and developed, 1 to 1.2 per panel and that four panels were moveable or operable to create an opening that would be somewhere between - somewhere around four metres in width.

(ii) Mrs Ripani's evidence 62 Mrs Ripani denied that there was any discussion about the façade openings during the meeting on 26 May 2017. 63 When asked in cross examination about the meetings with Ms Hart on 7 April 2017, 1 May 2017, 26 May 2017 and 9 June 2017, Mrs Ripani denied that Ms Hart spoke about the location of the doors and access between the interior and exterior of the apartment: T288.45-T289.18. 64 Mrs Ripani agreed the Option A/B plan was at the meeting on 26 May 2017, but she said she did not recall Ms Hart writing or making any marks on the plan. 65 When Mrs Ripani was asked in cross-examination about the meeting and it was suggested to her that Ms Hart brought the Option B plan to the meeting, Mrs Ripani denied this. Mrs Ripani also denied that Ms Hart drew on the Option B plan while discussing certain features on the floor plan with Mr and Mrs Ripani: T295.24-T301.7. 66 When it was suggested to Mrs Ripani that Ms Hart marked the Option B plan while explaining where the sliding doors would be along the western façade, Mrs Ripani's response was as follows: And Ms Hart says that she marked red annotations on this document at page 1601 while she explained to you where the sliding doors would be along the facade and which panels would move?‑‑‑She did not say anything about the sliding doors and, had she told me once, we wouldn't be here. Just once.

(iii) Mr Ripani's evidence 67 Mr Ripani said the Option A/B plan was discussed at the meeting on 26 May 2017 and that Ms Hart took notes at the meeting on a Rothelowman pad with green pen, but he denied that Ms Hart wrote on the plan. 68 When it was suggested to Mr Ripani in cross-examination that Ms Hart brought the Option B plan to the meeting, he denied this and he denied that Ms Hart drew on the plan during the meeting. Mr Ripani also denied that Ms Hart explained the location of the sliding doors along the western terrace during the meeting: T404.30-T406.11.

(iv) Mr Tran's evidence 69 Mr Tran was called to give evidence by Mr and Mrs Ripani. 70 Mr Tran was shown the render and asked about his belief as to what apartment 1401 would look like in the first half of 2017. Mr Tran said he "understood from consultation with the architects … that we were on track to achieving … an apartment like that", namely an opening like the render. Mr Tran said that he never stopped using the render during the sales campaign for the Victoriana and he always understood that apartment 1401 would have one opening on the western terrace, with doors that stacked to the left and to the right of the opening: T435.43-T437.16.

9 June 2017 meeting 71 It was accepted that on 9 June 2017, Ms Hart had a further meeting with Mr and Mrs Ripani at Rothelowman's office and that Mr Hu was present. Mr and Mrs Ripani said Mr Tran was also present at the meeting. Mr Tran had sent an email confirming he would attend and agreed he probably did attend the meeting, although he did not have any recollection of the meeting. I find that Mr Tran was also present at the meeting. 72 Century Legend submitted that at the meeting on 9 June 2017, Ms Hart again discussed the western façade with Mr and Mrs Ripani and she told them about the glazing panels and the sliding and stacking doors.

(i) Ms Hart's evidence 73 Without reference to the plans, Ms Hart gave evidence about what was discussed at the meeting on 9 June 2017 as including, relevantly, to use her words "the connection between the pool deck area and - the interior" and "the access from the entertainment to the pool, the access from that fireplace and sitting outside and being able to enjoy the - sitting outside and also, then, the access from the dining room to the barbeque area". 74 This was the extent of Ms Hart's evidence on the relevant discussion at the meeting on 9 June 2017 before Ms Hart was shown the Option C plan. Once again, it is critical to understand the detail and nuances of Ms Hart's evidence in relation to the relevant discussion at the meeting and it is set out in full. In my assessment of Ms Hart's evidence, what she told Mr and Mrs Ripani at the meeting on 9 June 2017 was vague and inconclusive in purporting to explain the openings on the western façade. 75 After being shown the Option C plan, Ms Hart's evidence about the meeting on 9 June 2017 was as follows: Could you tell her Honour what you said?‑‑‑Yes. So with regards to that western façade, I said that we, the Ripanis requested - so, again, moving from north to south, the north - there is a request to look at the idea of having that single door opening being a - double sliding panels, which I said would then need to move north up the page. The - they then would have fixed panels, and then we would come back to our opening, which is centred on the fireplace and the external dining - external seating area, which, again, is a division or the removal of four glazing panels. And then as you come south, the opening between the entertainment and the pool, the two glazing panels would then need to stack south of that opening, which is indicated by the red - two red lines on plan. What does the writing on the left - above the pool mean? It looks as if there's black pen and then pencil?‑‑‑Pencil. Yes. Is that in black pen and pencil?‑‑‑Yes, it is. So, yes, it is. It is. The point was to ask - the point I was getting to was, what does that say?‑‑‑It does. It says "two by DR" which is "doors". Just a shorthand for "doors". Two by doors, and I've picked up a pencil, and I've just asterisked - asterisked that to say: Potential sliding to side. I wasn't sure whether we could have two doors there, and so it was an asterisk to investigate. 76 Later in her evidence in chief, Ms Hart was brought back to the Option C plan and, when asked "what was said by reference to the marks on the page", she gave the following evidence: In respect of the western facade, could you tell her Honour what you said by reference to the marks on the page?‑‑‑I said that with the request to have - again north to south, with the request to have the northern opening, which had been a single panel - to have that as being two panels, the doors would need to move further - need to move north, which would mean - because the facade curves, it would mean that the panels would need to drop down a panel, so that the stacking panels which move south - which move north have somewhere to stack. Then you would have two panels which would be removed. You would have one fixed panel. You would then have four panels removed, which would give us the larger opening between the fireplace and the pool - the seating area beside the pool. You then have a fixed panel, and then you would have another two panels removed, and they would need - those panels would then need to slide south to allow for the four panels in the centre to be divided two and two, to then open left and right. So we were discussing the - how that facade with its sliding panels could potentially be accommodated. And what did the Ripanis say to you when you said those things about the doors stacking on the facade?‑‑‑The Ripanis - was my understanding the Ripanis ‑ ‑ ‑ MR STUCKEY: If the witness could refrain from giving her understanding and just what was said. MS COSTELLO: Well, your Honour, the last witness gave his understanding. So I ‑ ‑ ‑ HER HONOUR: About? MS COSTELLO: About - he gave his understanding of what he understood and what he thought everyone else understood, I note. HER HONOUR: But at the moment - I'm happy for Ms Ripani - Ms - Ms - sorry, Ms Hart to give her understanding later, but can we talk about - can you explain what was said?‑‑‑Certainly. And then what you understood?‑‑‑Yes, certainly. So I said that the two doors for the - for the opening of a - of a - for the request for the northern opening on - in that facade to now be a double-opening, the panels would need to then move north because the facade begins to - to curve, and so that whole opening would need to drop down a panel to allow for the sliding panels to have a flat surface on which to bank or to - to slide against. We would then need fixed panels before we then come into the larger opening, which is centred on the fireplace, which is the end of that serpentine wall, and I pointed out that that's one, two, three - four panels which are removed to allow for that larger opening. And then because the panels for the larger - the - for the two-panel opening above, to the north, is now moving north, it allows for two of those panels on that larger opening to move north, two panels to move south, which would then, in turn, mean that the opening between the entertainment area and the pool - the two panels that need to move to create that opening would now need to move and slide down to the south. So that's what I said to the Ripanis. The Ripanis - the Ripanis - the Ripanis - well, say it's my understanding the Ripanis understood what I was saying. They didn't - we - we - we discussed - and I mentioned the break-up of this panelling and how these panels would operate. HER HONOUR: What did you say about that?‑‑‑Just as - as I just said, in relation to how the panels slide up, north, to allow for that opening, that the doors to the centre opening need to move north and south of that opening because it's four panels that are moving - so, two south; two north - and that the opening at the entertainment area - those two panels would need to move south because you've got fixed panels, which are required for the opening - for the panels to slide against. And it's the break-up of the facade with those fixed - with those fixed panels included as well. Yes, that's what I said. MS COSTELLO: I think the question from her Honour was what did the Ripanis say - or from me?‑‑‑The Ripanis - the Ripanis - because we - we discussed, and the Ripanis requested for the two doors - sorry the two panels on the northern facade to open up that facade, to have an opening between that facade. So, from a - from a single panel to two panels, to make it larger. HER HONOUR: What did they actually say?‑‑‑I can't recall exactly the words that they - they used. I can't recall the exact words that they used. MS COSTELLO: So, in relation to the things that you said - that you just told the court that you said about that facade - could you describe anything else you recall the Ripanis saying about the entrances between the interior and the exterior?‑‑‑They - I suppose the reiteration about having the connection between the dining - I suppose there was the comment of the connection between the dining and the barbecue area. There was the - the Ripanis spoke again about the connection between the internal fireplace and the external seating area, and - and all - and the fact that that would be - being able to sit outside and - and have that connection between the interior and the exterior, and the connection between the entertainment and the pool area. 77 Later in her evidence in chief, Ms Hart was again asked to return to the meeting on 9 June 2017 and she was asked what she said in respect of the façade. Ms Hart was asked about Mr and Mrs Ripani's reaction and she gave the following evidence: When you talked to them about the facade - and just before lunch, you told her Honour about the things you said - what reaction did you observe from them in 9 June meeting?‑‑‑That - the Ripanis said that they wanted the opening to be as wide as possible, that their - the priority would be the opening that culminates in the fireplace and its connection to the seating area near the pool and for the opening to be as - as wide as possible.

(ii) Mrs Ripani's evidence 78 Mrs Ripani recalled the Option C plan being on the table at the meeting on 9 June 2017 but she did not recall Ms Hart writing on the plan. 79 Mrs Ripani was asked about her state of mind, at the end of the meeting, as to what the area from the terrace to the interior of the apartment was intended to look like. Mrs Ripani said there was never any doubt in her mind that what they had bought was going to be "exactly that, that it was going to be that big retractable invisible façade and that when it was open, it would be indoor/outdoor as at one level and totally seamless". 80 It was suggested to Mrs Ripani in cross examination that Ms Hart talked about where the doors were going to stack and how large the openings would be, which Mrs Ripani denied. It was suggested to Mrs Ripani that in the course of Ms Hart describing the doors and explaining how the doors would stack, Ms Hart drew on the plan and wrote "potential stacking to side". Mrs Ripani denied that Ms Hart explained the doors or that there was any discussion about how the doors would stack. Mrs Ripani said that if there had been a discussion along the lines suggested to her, they would have walked away: T303.17-T304.22. 81 It was also suggested to Mrs Ripani in cross-examination that she knew there would be more than one door between the interior and exterior on the western façade, because Ms Hart explained that to her at the meeting on 9 June 2017. Mrs Ripani denied this. It was suggested to Mrs Ripani that she was told that there were three openings and, while she was disappointed that there would be three doors, rather than one door, she was still pleased to buy the apartment. Mrs Ripani denied this. Mrs Ripani said, had she been told that, she would have been more than disappointed: T319.13-47.

(iii) Mr Ripani's evidence 82 Mr Ripani agreed that Ms Hart brought the Option C plan to the meeting on 9 June 2017, but he did not agree that she wrote on the plan during the meeting. 83 In cross-examination, Mr Ripani denied that Ms Hart spoke about the number and size of the openings on the western façade at the meeting on 9 June 2017. He also denied that Ms Hart explained the break-up of the glass panels along the façade or where panels would stack: T409.5-T410.14. 84 It was suggested to Mr Ripani in cross-examination that at the meeting, Ms Hart explained that there were three openings between the interior and exterior of the terrace and she explained how the doors worked. Mr Ripani denied this. He gave the following evidence in response: So, Mr Ripani, Ms Hart had explained to you on 9 June that there were three openings between the interior and the exterior, and she had shown you those three places and explained how the doors worked in that meeting, hadn't she?‑‑‑She had not, Ms Costello, and if she had - and being transparent and honest, we would have walked away. I would not have accepted that. No way.

(iv) Mr Tran's evidence 85 Mr Tran did not have any recollection about the meeting on 9 June 2017. Mr Tran was asked in cross-examination whether, at the various meetings he attended, he recalled a discussion about the way the panels on the façade stacked. Mr Tran said he could recall a discussion with Ms Hart about the way the panels stacked. Mr Tran said that the discussion was that there would be two sliding doors, where the doors opened, and one set would slide to the right and one set would slide to the left, "and just slide, slide, slide to create that opening". It was apparent from Mr Tran's evidence and the hand gestures that he used when giving his evidence that he meant and understood that there would be sliding doors that would meet in the centre and open to the right and left to create one opening: T456.6-28. 86 Century Legend submitted that the Court should find that the discussion that Mr Tran recalled about the sliding panels occurred at the meeting on 26 May 2017, as the marks on the plans were consistent with that discussion happening then. It will be necessary to return to the significance of this discussion later.

(v) Mr Hu's evidence 87 Mr Hu said that the flowthrough design between the interior and exterior areas was discussed at the meeting on 9 June 2017. Mr Hu's evidence was that Mr and Mrs Ripani wanted a connection between the internal and external entertainment areas and Ms Hart had suggested an opening centred on the fireplace. Mr Hu said that was the extent of the discussion that he recalled about the doors and the connection between the interior and exterior areas at the meeting: T726.33-T727.5. 88 In cross examination, Mr Hu was asked to confirm the evidence he gave at the initial trial that there was no discussion about the width of the door at the meeting on 9 June 2017. Mr Hu answered by saying the location of the door between the interior and exterior of the apartment was discussed at the meeting. Mr Hu's evidence was that there was a discussion about the opening that centred on the fireplace. Mr Hu explained that the discussion was about the location of the opening, not the opening itself, because Ms Hart had suggested an opening centred on the fireplace so that Mr and Mrs Ripani could enjoy the fireplace while sitting on the outside balcony: T779.37-T780.10.

Consideration 89 Century Legend submitted that the evidence showed that by August 2017, Mr and Mrs Ripani were no longer misled by the depiction of the opening in the render because Ms Hart had explained where the doors were in meetings on 26 May 2017 and 9 June 2017 with reference to the floor plans (the Options A/B, B and C plans). Century Legend submitted that at the meeting on 26 May 2017, "[Ms Hart] told [Mr and Mrs Ripani] about the three openings on the western façade and made marks in red pen on the floor plan to show this" and Ms Hart "showed [Mr and Mrs Ripani] there was a division of four panels creating the central opening that were 1-1.2m in width, and that they were moveable to create an opening around 4m in width." Century Legend submitted that Ms Hart again discussed the western façade with Mr and Mrs Ripani on 9 June 2017 and she told them about the glazing panels and the sliding and stacking doors. 90 Ms Hart's evidence about the meetings was given largely by reference to the plans. After being asked about, and giving her general recollection of, the meetings on 26 May 2017 and 9 June 2017, which was limited, Ms Hart was taken to the plans which she said she had at the meetings. Ms Hart proceeded to give evidence by reference to the plans and markings on them. Mr and Mrs Ripani disputed Ms Hart's evidence that all of the plans were at the meetings and that she wrote on the plans. I find on the balance of probabilities that the Option A/B and B plans and the Option C plan were at the meetings on 26 May 2017 and 9 June 2017 respectively and that Ms Hart wrote on the plans at the meetings. 91 As set out above in paragraphs 57-61, after being shown the plans, Ms Hart was asked three times to explain what she actually said to Mr and Mrs Ripani at the meeting on 26 May 2017. Her initial evidence was to explain, by reference to the marks on the plans, that there was to be "a point of access" between the dining room and the barbeque area, the top panel was "fixed" and "[y]ou then have an opening where the panels have been removed" and then, south of that, "there's panels removed. It's an opening." The second time that Ms Hart was asked to explain what she actually said, Ms Hart instead spoke in conclusory terms using expressions such as "I noted" and "we spoke about". On the third occasion, in cross-examination, Ms Hart's evidence was that she said the "façade is broken up into glazing panels of roughly a metre - just over a metre - 1.2 in width, and the - it has to be because of wind loadings against the western façade [and] the opening - the openings in the façade are a division of those two - or a sum of those window panels". Further, she "pointed to the - the main opening, which was centred on the fireplace, and counted and showed the number of panels that were being removed to create the opening on the fireplace and also the openings within the entertainment area". 92 Similarly, as set out above in paragraphs 73-77, after being asked about her general recollection of the meeting on 9 June 2017, which was limited, Ms Hart was shown the Option C plan. Ms Hart's evidence then was that Mr and Mrs Ripani requested "that single door opening" (i.e., at the northern end of the façade) be "double sliding panels", to which Ms Hart said "I would then need to move north … then they would have fixed panels, then we would come back to our opening, which is centred on the fireplace and the external dining - external seating area, which, again, is a division or the removal of four glazing panels." 93 There was no evidence given by Ms Hart that she told Mr and Mrs Ripani the actual width of the openings. It was not suggested to Mr and Mrs Ripani that Ms Hart told them the actual width of the openings. The only evidence from Ms Hart about the width of the openings was to be deduced from the information about the width of the panels (1-1.2m) and the removal of fixed panels from the façade. 94 Mr and Mrs Ripani denied that the Option A/B plan was discussed at the meeting on 26 May 2017, however, as mentioned above at paragraph 90, I have found on the balance of probabilities that the Option A/B plan was at the meeting and Ms Hart wrote on the plan. Nevertheless, Mr and Mrs Ripani denied that Ms Hart explained that there would be three openings along the western façade. They denied that they understood there were three door openings on the western façade. 95 Mr and Mrs Ripani submitted, and I accept, that the clearest evidence Ms Hart gave regarding the meeting on 26 May 2017 was her evidence, in cross-examination, when Ms Hart said that she told Mr and Mrs Ripani: The facade is broken up into glazing panels of roughly a metre - just over a metre - 1.2 in width, and the - it has to be because of wind loading against the western façade. And the opening - the openings in the facade are a division of those - or are a sum of those window panels. 96 Century Legend relied on this evidence and the evidence that followed (see paragraph 61) to submit that Ms Hart "had explained to [Mr and Mrs Ripani] that the façade was broken into glazing panels roughly 1.2m wide and that the opening centred on the fireplace would have four glazing panels that were moveable and stackable to create an opening of up to three or four metres". 97 Ms Hart's evidence regarding what she said to Mr and Mrs Ripani at the meetings on 26 May 2017 and 9 June 2017 was vague and inconclusive in purporting to explain the openings on the western façade. If Ms Hart had sought to explain the truth about the openings on the western façade in the terms in which she gave evidence about what she said to Mr and Mrs Ripani at the meetings on 26 May 2017 and 9 June 2017, I consider that her explanation would not have been clear enough to convey to Mr and Mrs Ripani that an opening like the render was not going to be provided. 98 Century Legend submitted that Ms Hart's evidence was compelling and should be accepted because her evidence was detailed and convincing and she was an impressive witness who had no "skin in the game". Ms Hart was an honest and earnest witness who endeavoured to give evidence to the best of her recollection. Although she was only able to give pertinent evidence by reference to the plans, Ms Hart said, and I accept, that she had a general understanding and memory of the meetings, but seeing the plans helped her to clarify the memory. However, having observed all of the witnesses and in light of the totality of the evidence, my assessment is that, at the meetings on 26 May 2017 and 9 June 2017, Ms Hart did not explain the openings along the western façade to Mr and Mrs Ripani in clear terms or in terms by which they could have understood that apartment 1401 as constructed would not look like the render and that, instead of an opening with a flow through design like the render, the western façade would have three openings. 99 Century Legend submitted that Ms Hart's annotations on the floor plans - in particular the Options A/B and B floor plans annotated at the 26 May 2017 meeting and the Option C floor plan annotated at the 9 June 2017 meeting - corroborated her account of those meetings. Ms Hart's evidence was given largely by reference to the floor plans and she referred to the marks on the plans by way of explanation of the matters she raised at the meetings. Century Legend's submission that Ms Hart's annotations on the plans corroborates her account of those meetings is, therefore, circular. 100 Century Legend submitted that Ms Hart's evidence should be preferred to that of Mr and Mrs Ripani, who were self-interested and motivated to give evidence that supported their case. I found Mr and Mrs Ripani to be honest witnesses who gave evidence to the best of their recollection and I accept their evidence that they always understood that the opening would look like the render. That finding is supported by the evidence given by Mr Tran, who had no interest in the litigation. 101 As at the middle of June 2017, Mr Tran said that he believed the architects were on track to achieve an apartment like the image in the render. Mr Tran said he never stopped using the render to advertise the Victoriana. Mr Tran's evidence was that there was to be a single opening on the western façade and two sliding doors "[o]ne side - stack - stack - moves to the right-hand side, and the other one stack - stacks to the left", to create one opening. 102 Mr Tran said he could recall Ms Hart describing the way the sliding panels along the façade between the interior and exterior stacked. Mr Tran said that the discussion was that there would be two sliding doors that would meet in the centre and one set would slide to the right and one to the left, "and just slide, slide, slide to create that opening". Century Legend submitted that the Court should find that this conversation occurred at the meeting on 26 May 2017 as the marks on the Option B plan were consistent with the conversation happening then. Further, it submitted that Mr Tran's account was entirely consistent with Ms Hart explaining the opening between the dining room and the barbeque area on the terrace to Mr and Mrs Ripani. I do not regard Mr Tran's evidence as supportive of Century Legend's position or consistent with Ms Hart explaining the opening between the dining room and the barbeque area to Mr and Mrs Ripani. Mr Tran's evidence was that he always understood there would be one opening on the western façade. It was apparent from Mr Tran's evidence and the hand gestures that he used when giving his evidence that he meant and understood there was to be one opening with doors to the right and to the left that would "slide, slide, slide to create that opening". 103 Mr Tran gave evidence about his belief that there was to be "one opening" on more than one occasion. On each occasion, he said that that belief was based on what the architect, Ms Hart, had said at the meetings at which he and Mr and Mrs Ripani were present. Mr Tran was aware that the large free-span opening between the interior and exterior was a feature that attracted Mr and Mrs Ripani to the apartment: PJ [19]. Mr Tran told Mr and Mrs Ripani that apartment 1401 would be constructed as depicted in the render, with an expansive opening onto the terrace from the internal living areas: PJ [32]. Given Mr Tran's belief that apartment 1401 would look like the image on the render and that he was aware that the large free-span opening attracted Mr and Mrs Ripani to the apartment, it is reasonable to infer, and I find, that Mr Tran would have reacted in some way if Ms Hart had said in clear terms, or in terms he or Mr and Mrs Ripani could have understood, that the apartment as constructed would not look like the render and there would be three openings along the western façade. If those matters had been explained, I consider that Mr Tran would not have stood by and he would not have continued to hold the belief that there was to be one opening and that an apartment like that shown in the render was achievable. Mr Tran was not challenged about his belief or basis for his belief in cross-examination. 104 Century Legend submitted that Mr Hu's account is also consistent with Ms Hart's evidence insofar as he recalled that "the locations of the doors was discussed". Contrary to Century Legend's submissions, Mr Hu did not give evidence that he recalled that "the locations" (plural) of the "doors" (plural) were discussed at the meeting on 9 June 2017. Mr Hu's evidence was that the "door opening", "the location of the door" and "door location" was discussed. 105 My findings are strengthened by Ms Hart's admission that she could not tell Mr and Mrs Ripani that they would not get the openings in the render and that she was obliged to be less than frank on a number of occasions. This aspect of her evidence is significant, and it was as follows. 106 On 12 October 2016, Mr Perkins, senior architect at Rothelowman, raised concerns about the render in an email to Mr Shawn Lu, Marketing Manager at Century Legend, and Ms Kylie Xu, General Manager at Century Legend. The email, which was copied to Ms Hart, said: Shawn, Further to my email last night I would like to advise JD Group that several of the design changes (architecture and interiors) made by JD Group during the render stage are not in accordance with the Town Planning Permit or the current Design Development drawings. Also should a purchaser want exactly what is shown in the renders, for example, a flush inside to outside threshold, or uninterrupted floor to ceiling glazing it will not be possible due to the overall height restriction of the development and structural requirements. The changes made to the interior design of the standard apartment may be possible but will require further review, design development/documentation. There are also some safety issues with the design of the landscaping and pool areas that will need to be resolved after marketing. Due to the extent of the changes, the misleading nature of the renders, and our inability to follow through on the render design I would advise JD Group to have the renders amended before marketing launch. Should this not be possible I would advise JD Group to be transparent with all potential purchasers in relation to the render content and to ensure that all "Artists Impressions" are accompanied with a suitably comprehensive disclaimer to cover the discrepancies/inaccuracies. This disclaimer should also be included in all marketing material and contract of sale documents. Please don't hesitate [to] call should you wish to discuss the above. … [Emphasis added] 107 Ms Hart agreed that the large free-span opening between the interior and exterior was a feature that attracted Mr and Mrs Ripani to apartment 1401. At the time Mr and Mrs Ripani signed the Contract in April 2017, Ms Hart knew that the opening as shown on the render was not possible and that the render was misleading. Ms Hart agreed in cross-examination that this was potentially a very serious problem for Rothelowman because she knew Mr and Mrs Ripani were not going to get that. 108 Ms Hart agreed that when she was asked to work on apartment 1401 for Mr and Mrs Ripani, she knew that if she took a wrong step, Century Legend was likely to be very unhappy because they might lose a valuable sale and Rothelowman might be sued. Ms Hart agreed that being asked to work on apartment 1401 for Mr and Mrs Ripani was "a potential time bomb". Ms Hart agreed that the circumstances she was placed in, in dealing with Mr and Mrs Ripani, "obliged [her] to be less than frank on a number of occasions". Ms Hart agreed she would not have told Mr and Mrs Ripani the truth during meetings with Mr Hu or Mr Tran, because it might get back to Century Legend, and she could not say openly that they were not going to get what was shown in the render. Therefore, as Counsel for Mr and Mrs Ripani submitted, the meetings on 26 May 2017 and 9 June 2017 were not an occasion for Ms Hart to tell Mr and Mrs Ripani the opening they expected would not or could not be provided. 109 On 23 June 2017, Ms Hart sent an email to Mr Hu and others at Century Legend about the perimeter edge banding for each level of the Victoriana, which concluded by saying: We feel it's extremely important that JD Group make purchasers aware of the actual internal/external transition and breaking up in glazing that will be achieved, as this is not accurately shown in the JD Group commission to marketing renders. It needs to be reiterated that marketing renders are an artist's impression only and not actual building images. 110 The email forwarded the email from Mr Perkins to Century Legend dated 12 October 2016 (referred to above in paragraph 106). 111 Mr Hu responded by email later that day noting that Century Legend had "put artist impression in all our renders and we have a disclaimer as well." 112 Century Legend submitted that Ms Hart's email to Century Legend on 23 June 2017 supported the fact that she told Mr and Mrs Ripani about the actual break up in the glazing panels. I disagree. Century Legend's response to the 23 June 2017 email may seem surprising, given the very clear warning from the architects on two separate occasions that the render was misleading, but it would have reinforced Ms Hart's belief about the sensitivity of the matter. That Ms Hart did not mention in her email of 23 June 2017 that she had made Mr and Mrs Ripani aware of the inaccuracy of the render may seem inexplicable. That Ms Hart did not on other occasions mention that she had already told Mr and Mrs Ripani about the width of the openings may also seem inexplicable. However, it is entirely explicable in light of Ms Hart's evidence that it was potentially a serious problem and she had to be careful. Ms Hart's email of 23 June 2017 was Ms Hart saying she knew there was a problem and she told Century Legend that ultimately it was their problem. There was no evidence that Ms Hart made a contemporaneous record of what she said she told Mr and Mrs Ripani regarding the inaccuracy of the render or the truth about the openings. Indeed, she was careful not to do that. 113 Century Legend submitted that the Court should conclude that by August 2017, having looked at the floor plans carefully and repeatedly in the period of April to August 2017, Mr and Mrs Ripani understood that there were multiple door openings on the façade. Century Legend submitted that Mr and Mrs Ripani saw the plans on the back of seeing the model of the Victoriana at the display suite, which shows the glazing break up across the façade. I accept that Mr and Mrs Ripani were given plans, which they printed and looked at. The floor plans that were shown and provided to Mr and Mrs Ripani were in plan view and were not elevation drawings. The sliding doors along the western façade were depicted by arrows reflecting their direction of travel in fine lines set against a background of herringbone chevrons (see image at Annexure G). There was no key provided on the plans to explain the lines or marks or what they were intended to depict. 114 The openings on the plans were not buildable. Ms Hart agreed that the sliding doors on the Option A plan could not be built because the centre opening was not wide enough and the sliding doors at the southern end of the centre opening and the southern opening moved into the same fixed panel, which would not work. Ms Hart agreed that this defect also applied to the Option A/B, B and C plans. Ms Hart did not pick up that the openings in the Option C plan were not buildable because there was no room available for a two door stacker and she agreed it was "confusing". This issue also applied to the Option E plan. In addition, if the façade had included two openings at the northern and southern ends as shown on the Option E plan, there would not have been enough room for the sliding doors for the centre opening. Finally, when the draftsperson prepared the Option E plan dated 6 February 2018 they misinterpreted changes to the doors marked up on the plan given to them as a series of four single doorways. Ms Hart said she did not notice this irregular change at the time. 115 These errors were not picked up in the design process, which involved architects, a principal designer, a draftsperson (or persons), and Ms Hart. It is therefore difficult to accept that Mr and Mrs Ripani might have noticed and understood how the openings worked by reference to the plans when none of the professionals dealing with the plans apparently did or had regard to them. Nobody ever remarked upon the fact that the represented openings could not in fact be built as depicted. 116 Century Legend further submitted that Ms Hart's evidence was credible and should be accepted because the evidence of two different witnesses - Ms Hart and Mr Hu - to the effect that on 15 September 2017 Mr and Mrs Ripani renewed their request for a wide opening, was consistent with Ms Hart's evidence that they were disappointed to learn the true position about the opening in the meetings with Ms Hart in May and June 2017. 117 Mr Hu's evidence about the meeting on 15 September 2017 was as follows: …And also, they mentioned about the door opening to the - I think they mentioned - if this - got to be - look like the render image. I say, "I can't guarantee that, but we can put in the request saying 'open the door as wide as possible'." So that's why I put the notes along the door side. 118 When Mr Hu was asked to go through that evidence "in steps", he said that he could not "recall if it's Nina or Walter mentioned if the door can be - look like the render". Mr Hu was then asked what he said, to which he responded: …I said I can't guarantee that. It's - really depends on the architect and the builder because we haven't got the builder at the time. We can't determine how wide it can be open. 119 Mr Hu was then asked what Mr and Mrs Ripani said, and he gave the following evidence: And what did Walter and Nina say?‑‑‑I think they accept that is not under my control, so I think they stop asking. Well ‑ ‑ ‑?‑‑‑They - they didn't say anything, I think. They didn't say anything?‑‑‑Yes. But you said something ‑ ‑ ‑?‑‑‑Instead of, they request a door to be as wide as possible. Okay. Who asked that?‑‑‑I can't recall. Either of them, yes. Requested for the door to be open as wide as possible?‑‑‑Correct. Was anything said about the width of the door?‑‑‑No. 120 Mr Hu was later asked about a note he made on 15 September 2017 "Sliding door to be open as much as possible" and his evidence was: Yes. And just how - just tell her Honour how that note came to be on there?‑‑‑Yes, as I said before, I think they mentioned about the render image, if the door can be open as such, as such wide. I said I can't guarantee that. I said we can put in the notes to the architect saying please design the door to be open as wide as possible. 121 In taking Mr Hu through his initial evidence "in steps", his evidence changed from Mr Hu initially saying that he said "we" (meaning JD Group) would put in a request for the doors to be "as wide as possible", to Mr and Mrs Ripani requesting "a door to be as wide as possible". He maintained the latter answer after he was shown his note "Sliding door to be open as much as possible", however, he was not asked if he wished to change his earlier evidence. 122 Century Legend's submission that Mr Hu gave evidence that during the meeting on 15 September 2017 Mr and Mrs Ripani requested to "open the door as wide as possible" does not accurately represent the entirety of Mr Hu's evidence. Century Legend submitted that, being disappointed to learn the true position after they entered into the Contract, it was "entirely explicable" that Mr and Mrs Ripani renewed their request for a wide opening. However, that is not the only explanation. Mr and Mrs Ripani had not been told the actual width of the door, even on Century Legend's case. In my assessment, having been attracted to apartment 1401 by the opening shown in the render, they had occasion to ask Century Legend's representative about the opening on the render when they met with him to discuss the interior design and customisation of the apartment at the meeting on 15 September 2017. Mr Hu's evidence was that he said he couldn't guarantee the opening would look like the render. Whether (as Mr Hu initially said) he then said "we can put in the request saying 'open the door as wide as possible'", or Mr and Mrs Ripani requested a wide opening, was explicable with Mr and Mrs Ripani having asked about the image in the render because it was what had attracted them to the apartment. 123 Ms Hart's evidence does not advance matters. Ms Hart gave evidence that on 15 September 2017 (after Mr Hu's meeting with Mr and Mrs Ripani) Mr Hu told Ms Hart that Mr and Mrs Ripani want the opening to the terrace to be as wide as possible. It must be borne in mind that Mr Hu and Ms Hart knew the true position. 124 Century Legend submitted that, consistently with her practice, Ms Hart made red pen-mark annotations on the Option E plan dated 15 September 2017 (with Mr Hu's writing in blue). Ms Hart also made notes in a Rothelowman notebook of that meeting with Mr Hu, in black pen, dated 15 September 2017, including by writing "sliding doors to open wide as poss to terrace". This was Ms Hart's evidence and note of what Mr Hu told her - it was not evidence or a note of a request that Mr and Mrs Ripani made directly to Ms Hart. Century Legend subsequently self-described this request as a "purchaser's request". 125 In addition to the meeting on 15 September 2017, Century Legend also referred to the following matters regarding the post-contractual request to make the door as wide as possible: (a) On 21 September 2017, Ms Hart emailed Mr Hu stating "I have the following points noted from our discussion… Additional notes: … Sliding doors to terrace to be maximum openable width possible"; (b) On 2 October 2017, Ms Hart emailed Mr Hu, Kylie Xu and others and said "Following my meeting with Walter and Nina the following additional items have been requested:…19. Maximum width access to the terrace"; (c) In an email of 28 November 2017 to Ms Xu, Ms Hart said "With regards to the apartment terrace threshold transitions, yes purchasers for both 1401 and 1101 have expressed the expectation that there will be an even transition as per the marketing renders. Both parties have requested to maximise the width of opening to the terraces to take advantage of the interior/ exterior connection"; and (d) The purchaser upgrade schedule dated 6 February 2018 referred to "Purchaser request: Maximize clear opening to balcony" along with the date "22.09.17". 126 The documents referred to above are Century Legend's self-described record of a "purchaser's request" or Ms Hart's record of the request as it was conveyed to her, bearing in mind that Century Legend and Ms Hart knew the true position. There were no documents prepared by Mr or Mrs Ripani recording the request or evidencing that they made the request. 127 The opening "request" was first recorded in writing at and following Mr Hu's meeting with Mr and Mrs Ripani on 15 September 2017. Given the ambiguity in Mr Hu's evidence leading up to the recording of the request, and for the reasons mentioned in paragraph 122, I do not accept Century Legend's submission that Mr and Mrs Ripani's evidence, that they did not know they were not getting the doors in the render, is a matter which cannot be reconciled with the post-contractual requests for a wide opening. 128 Century Legend submitted that "relatedly" it was apparent from the evidence of Mr Hu that one of the reasons for the meeting of 13 July 2018 was that Mr and Mrs Ripani were not happy about the width of the opening to the western façade. Century Legend submitted that there was no explanation for the meeting, other than that Mr and Mrs Ripani had been told previously about the true position of the doors, were still disappointed about it, and had requested the opening to be "as wide as possible". 129 On the contrary, I accept the submission on behalf of Mr and Mrs Ripani that the reason for the meeting on 13 July 2018 was that Mr and Mrs Ripani were not happy about the height of the doors on the western façade. On 4 May 2018, Mr Hu met with Mr and Mrs Ripani at their private residence. Mr Hu brought two documents with him - the document entitled "Purchaser Upgrade Premium Apartment 1401 VICTORIANA 20 Queens Road, Albert Park" (Purchaser Upgrade document) and an "Estimate Summary" prepared by WT Partnership, quantity surveyors (WTP Costings). The Purchaser Upgrade document was prepared by Rothelowman. The WTP Costings contained estimated costings for "[i]tems to be included as standard" and "[a]dditional items provided at extra cost to client". Mr Hu said the purpose of the meeting on 4 May 2018 was to discuss variations or upgrade options with Mr and Mrs Ripani and which of the upgrade options would be at Mr and Mrs Ripani's cost. 130 Mr Ripani said he noticed item 2.8 in the WTP Costings: "Maximum access to Terrace - Assume Renlita frameless glass doors including motorised operation, writing, to suit 12000 x 2550 opening size". Item 2.8 was under "Additional items provided at extra cost to client" and was costed at $43,760. Mr Ripani said he noticed item 2.8 was a 12 metre stackable door with a height of 2.5 metres. Mr Ripani said the aspect that concerned him was the height of the door. Mr Ripani said he asked why they were paying for this item and why it was not part of the construction of the apartment, and Mr Hu said he would have to check. Mr Hu said that when he saw this item he was surprised to see Mr and Mrs Ripani were getting a 12 metre opening. He said "Wow, you're getting 12 metres", but did not tell Mr and Mrs Ripani that he did not think an opening of that width was not possible. 131 After the meeting on 4 May 2018, Mr and Mrs Ripani met with Ms Hart on 22 June 2018. It is likely that the ceiling and door heights were discussed at the meeting because, on 22 June 2018, Ms Hart sent Mr and Mrs Ripani an email that referred to the meeting and attached a schematic section for the apartment that showed the height of the ceilings and the doors on the western façade. 132 Mr Ripani replied to Ms Hart's email on 25 June 2018 raising the concerns he had raised from "day one" about the ceiling heights. Given that the concern raised at the meeting on 4 May 2018 was actually about the doors, Mr Ripani's email can be taken to be about the height of the ceilings and doors. This was the first time Mr or Mrs Ripani complained about the doors in writing, and it was a complaint about the height of the doors. Ms Hart responded to Mr Ripani's email to suggest that he should speak to Mr Lu, as Mr Hu was on holidays. 133 Mr Ripani then sent an email to Mr Lu on 25 June 2018 which again raised his concerns about the ceiling heights. Mr Lu replied to ask for "a couple of days to check with the team and then come back to you later this week." On 13 July 2018, Mr and Mrs Ripani had a meeting with Mr Lu. In my assessment, the events leading up to this meeting, as set out above, show that the reason for the meeting on 13 July 2018 was for Mr Lu to come back to Mr and Mrs Ripani, who were not happy about the height of the ceilings and doors. 134 The initial trial judge found that the render represented to Mr and Mrs Ripani that apartment 1401 when constructed would accord with the render and include the flow through design. Further, that Mr and Mrs Ripani relied on the render to sign the Contract in April 2017: PJ [12], [14], [41], [92], [95], [97], [98]; FC [13], [213]. The large free span opening of the doors as depicted in the render was an important feature to Mr and Mrs Ripani and central to their decision-making to sign the Contract: PJ [17], [21]; FC [229]. 135 Mrs Ripani said that, after the Contract was signed in April 2017, she wanted and was still expecting the "big opening" they were sold. Mrs Ripani thought that she was purchasing an apartment that would look like the render with a large retractable façade and an interior and exterior that was totally seamless. Mr and Mrs Ripani provided the bank guarantee in August 2017. However, they said that they would not have gone through with the purchase and would have walked away if Ms Hart had told them that they were not going to get an opening like the render and were instead going to get three openings on the western façade. 136 Having regard to all these matters, I find that Mr and Mrs Ripani continued to rely on the truth of the Representations when, having reached a state of satisfaction with the Option E plan, they provided the bank guarantee on 29 August 2017. I find that Mr and Mrs Ripani in fact relied on the Representations when they provided the bank guarantee on 29 August 2017 to communicate their acceptance that the Contract had become unconditional. I also find that Mr and Mrs Ripani would not have provided the bank guarantee if they understood that they were not going to get an opening like the render and were instead going to get three openings on the western façade.

Second issue - the orders for relief the Court should make 137 Having found that Mr and Mrs Ripani continued to rely on the truth of the Representations when they conveyed to Century Legend that they were satisfied with the floor plan and provided the bank guarantee, it is necessary to consider the orders that should be made under s 237 of the ACL for compensation and under s 243 of the ACL. 138 Mr and Mrs Ripani sought recission of the Contract, return of the bank guarantee which was provided in lieu of a deposit, and damages and pre-judgment interest in a sum to be determined. 139 A person who has suffered, or is likely to suffer, loss or damage because of the infringing conduct of another person may apply for a compensation order under s 237(1) of the ACL. Section 237 of the ACL empowers the Court to make orders as it thinks appropriate against the person who engaged in the infringing conduct. The Court has power to make a compensation order that the Court considers will compensate the injured person, in whole or in part, for the loss or damage or prevent or reduce the loss or damage suffered or likely to be suffered: s 237(2) of the ACL. Without limiting s 237(1), s 243 sets out the types of orders that may be made, including an order in the nature of statutory rescission: s 243(a) of the ACL. 140 Detriment, and therefore damage, may arise from the fact that a person is bound to a contract "unconscionably induced … or that ... includes the disadvantage of incurring contractual obligations which would not have been incurred but for the conduct complained of": FC [226], citing Harvard Nominees Pty Ltd v Tiller (2020) 282 FCR 530; [2020] FCAFC 229 at [77] (Lee, Anastassiou and Stewart JJ). 141 For the reasons set out above in paragraphs 89-136 I am satisfied that Mr and Mrs Ripani were induced to enter into the Contract in August 2017 "because of" the misleading render and, in doing so, Mr and Mrs Ripani suffered loss and damage of the kind contemplated by s 237(1), which includes detriment arising from the fact that they became bound by and incurred contractual obligations under the Contract which they would not otherwise have entered into. 142 The Court has a discretion to make orders in the nature of rescission under s 243(a) of the ACL. Century Legend submitted that Mr and Mrs Ripani have no entitlement to a remedy because they cannot establish any loss they claim to have sustained "because of" any misleading or deceptive conduct on the part of Century Legend. I reject that submission. Century Legend did not submit that the Court should decline to grant statutory rescission on discretionary grounds. 143 I consider that the pre-requisites to the exercise of the statutory power to order rescission are satisfied and that an order for rescission of the Contract is appropriate in the circumstances of this case. I would make an order that the Contract be rescinded and that Century Legend return the bank guarantee to Mr and Mrs Ripani. 144 The initial trial judge also made findings in relation to loss suffered by Mr and Mrs Ripani. The parties remain bound by the determinations of the initial trial judge in this respect. I will hear from the parties in relation to the orders and any other relief that should be made in light of these reasons and the determinations of the initial trial judge.

BREACH OF CONTRACT CLAIM 145 Century Legend's claim in the second proceeding was for damages for breach of contract by reason of Mr and Mrs Ripani's failure to settle the purchase of apartment 1401. Century Legend's claim proceeded on the basis that Mr and Mrs Ripani's misleading and deceptive conduct claim would fail. Whilst strictly unnecessary to decide given my findings above, in the event I am wrong and the Contract remained on foot, I make the following findings in relation to Century Legend's breach of contract claim.

Background 146 By reference to the Contract, settlement was due 14 days after Century Legend notified Mr and Mrs Ripani that the Occupancy Permit had been issued. The Occupancy Permit was issued on 26 August 2021. 147 On 22 December 2022, after the Full Court handed down its decision, Century Legend notified Mr and Mrs Ripani that settlement was to take place on 17 January 2023. 148 Mr and Mrs Ripani's solicitors advised that Mr and Mrs Ripani did not intend to settle the purchase. 149 On 18 January 2023, Century Legend issued a Notice of Default notifying Mr and Mrs Ripani that they were in default for failing to pay the balance of the purchase price and that Century Legend intended to exercise its rights arising from the default unless the default was remedied within 14 days, being 1 February 2023. 150 Century Legend alleged that Mr and Mrs Ripani were in default of the Contract for failing to settle the purchase of apartment 1401 and claimed entitlements under the Contract, being payment of the deposit and interest, plus damages. In the alternative, Century Legend alleged that by bringing the first proceeding, Mr and Mrs Ripani evinced an intention not to be bound by the Contract and thereby repudiated the Contract, which repudiation was accepted. Century Legend sought to recover loss and damage suffered by reason of Mr and Mrs Ripani's repudiation. 151 Before turning to Mr and Mrs Ripani's defences, it is necessary to have regard to some additional background matters. 152 The parties agreed that Century Legend was required to construct apartment 1401 in accordance with the following documents, which formed part of the Contract: (a) the Contract of Sale, which contained the terms and particulars of sale; (b) the Option E plan; and (c) a set of specifications dated 15 June 2017 entitled "Generic Outline Specification - 20 Queens Rd, Melbourne VICTORIANA - Prestige Apartment _ 1401" (1401 Generic Specification). 153 However, Mr and Mrs Ripani claimed (and Century Legend denied) that: (a) Century Legend was also required to construct apartment 1401 substantially in accordance with a document entitled the "Premium Apartments_Interior Detailed Concept Design" dated July 2016 (Concept Design); and (b) furthermore, in or about May 2018, the parties agreed to vary the Contract to the extent necessary to change the 1401 Generic Specification by releasing Century Legend from the obligation to carry out the works as originally agreed and instead requiring it to carry out works recorded in a document prepared by Rothelowman entitled "Purchaser Up-Grade Premium Apartment 14.01" (Purchaser Upgrades) (Variation Agreement). 154 By way of defence to Century Legend's claims, Mr and Mrs Ripani contended that they were not required to settle the purchase of apartment 1401 because Century Legend was not ready, willing and able to perform the Contract. Mr and Mrs Ripani contended that apartment 1401 was constructed in such a way as to depart substantially from that which was agreed between the parties and Century Legend was in serious and material breach of the Contract. For that reason, Mr and Mrs Ripani contended that they were under no obligation to complete the purchase and were entitled to rescind the Contract. Century Legend, on the other hand, contended that apartment 1401 was constructed in accordance with the Contract, save for changes requested by Mr and Mrs Ripani or changes that Century Legend was permitted to make under the Contract. 155 Further or alternatively, Mr and Mrs Ripani contended that by instructing the builder, Hickory, to construct apartment 1401 in a way that did not accord with the Concept Design and did not include the Purchaser Upgrades, Century Legend evinced an intention not to perform the Contract in accordance with its terms and thereby repudiated the Contract, which repudiation Mr and Mrs Ripani accepted and the Contract was rescinded. Century Legend, on the other hand, contended that Mr and Mrs Ripani were not able to rely on Century Legend's alleged repudiation because they were not ready, willing and able to settle the purchase. 156 Further or alternatively, Mr and Mrs Ripani contended that Century Legend represented that it would build apartment 1401 in accordance with the Option E plan, the 1401 Generic Specification and Concept Design. Mr and Mrs Ripani contended that they relied upon that representation in providing the bank guarantee and entering into the unconditional Contract and Century Legend was estopped from denying that it was obliged to construct the apartment in accordance with the Option E plan, the 1401 Generic Specification and the Concept Design. 157 The issues that arise for determination are therefore as follows: (a) whether the Concept Design formed part of the Contract; (b) whether the Variation Agreement was made and, therefore, apartment 1401 was required to include the Purchaser Upgrades; (c) whether Century Legend failed to construct apartment 1401 substantially in accordance with the Contract; (d) whether Century Legend was estopped from denying that it was obliged to build apartment 1401 substantially in accordance with the Option E plan, the 1401 Generic Specification and the Concept Design; (e) whether Century Legend repudiated the Contract and, if so, whether Mr and Mrs Ripani were entitled to accept that repudiation and rescind the Contract; (f) whether Century Legend was ready, willing and able to perform the Contract; (g) whether Mr and Mrs Ripani were entitled to rely on Century Legend's repudiation if, as alleged, they were not ready, willing and able to settle the purchase; (h) whether Mr and Mrs Ripani were obliged to settle the purchase of apartment 1401; and (i) whether Century Legend was entitled to the relief sought. 158 I consider these issues sequentially below.

Concept Design 159 Mr and Mrs Ripani submitted that the Court should find that Century Legend agreed to construct apartment 1401 in accordance with the Concept Design (to the extent that it was not otherwise varied by the Option E plan and the 1401 Generic Specifications). Mr and Mrs Ripani submitted that this agreement was reached over a period of negotiations from April to mid-June 2017, by which time the parties had reached agreement about the floor plan and specifications for apartment 1401. 160 Mr and Mrs Ripani did not identify the precise meetings at which they say the alleged agreement was reached other than a meeting on 7 April 2017. Accordingly, I will deal with this submission on the basis that the alleged agreement was reached at the meeting on 7 April 2017.

Relevant principles 161 The relevant principles on formation of a legally enforceable contract were summarised by Allsop J (as his Honour then was, Drummond and Mansfield JJ agreeing), in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [369] in the following terms: … a number of authorities discuss the need not to constrict one's thinking in the formation of contract to mechanical notions of offer and acceptance. Contracts often, and perhaps generally do, arise in that way. They can also arise when business people speak and act and order their affairs in a way without necessarily stopping for the formalities of dotting "i"s and crossing "t"s or where they think they have done so. … Sometimes this failure occurs because, having discussed the commercial essentials and having put in place necessary structural matters, the parties go about their commercial business on the clear basis of some manifested mutual assent, without ensuring the exhaustive completeness of documentation. In such circumstances, even in the absence of clear offer and acceptance, and even without being able … to identify precisely when a contract arose, if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract. Sometimes this is said to be a process of inference or implication. For my part, I would see it as the inferring of a real intention expressed through, or to be found in, a body of conduct, including, sometimes, communications, even if it be the case that the parties did not consciously advert to, or discuss, some aspect of the relationship and say: 'and we hereby agree to be bound' in this or that respect. The essential question in such cases is whether the parties' conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract. 162 Whether a contract has been entered into is to be judged on an objective assessment of the state of affairs between the parties: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [25] (Gaudron, McHugh, Hayne and Callinan JJ). See also Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). 163 The magnitude and complexity of the subject matter of the alleged contract will bear upon the likelihood that the parties intended to reach legally binding terms in an informal manner: Uranium Equities Ltd v Fewster (2008) 36 WAR 97; [2008] WASCA 33 at [224] (Steytler P, McLure and Buss JJA). See also Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2018] FCA 174 at [13] (Colvin J). 164 Subsequent conduct is admissible for the purpose of determining whether a contract was in fact formed at an earlier time: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 547-8 (Gleeson CJ, with Hope and Mahoney JJA agreeing) and Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at [25] (Heydon JA). However, such conduct must point to the existence of a contract on the terms alleged: Laidlaw v Hillier Hewitt Elsey Pty Ltd [2009] NSWCA 44 at [9] (Macfarlan JA with Beazley JA agreeing).

Meeting on 7 April 2017 165 It was accepted that the Concept Design was presented to Mr and Mrs Ripani by Ms Hart at a meeting at Rothelowman's offices on 7 April 2017. The Concept Design was prepared by Rothelowman for the interiors of the apartments across the Victoriana, although it also contained a proposed floor plan for apartment 1401, which was one of the penthouse apartments. The Concept Design contained images and photos depicting a number of concepts, such as a selection of colour palettes and finishes for the interiors. It also contained details of proposed interior features, kitchen appliances, lighting and bathroom fittings and images of swatches of materials and fabrics selected by Rothelowman as an available range for the construction of the Victoriana. 166 Mrs Ripani said Ms Hart took them through the Concept Plan at the meeting on 7 April 2017 and Ms Hart described it as Rothelowman's "thinking", and finishes that they were suggesting, for apartment 1401. Mrs Ripani said that after being shown the Concept Plan, it became her "vision" for the apartment. However, Mrs Ripani said that the discussion at the meeting on 7 April 2017 "didn't go into a lot of detail" in relation to the Concept Design. 167 Mr Ripani confirmed that they went through the Concept Design at the meeting on 7 April 2017. He said they told Ms Hart they thought it was "amazing". At the meeting, Mr Ripani asked Ms Hart to send them the floor plan and the Concept Design. 168 Ms Hart said that she presented the Concept Design to Mr and Mrs Ripani at the meeting. Mr and Mrs Ripani's case in relation to the Concept Design was not put to Ms Hart in cross-examination. 169 After the meeting, Ms Hart emailed the Concept Design to Mr and Mrs Ripani on 12 April 2017. The Concept Design was discussed in a subsequent meeting on 22 September 2017.

Consideration 170 In my assessment, the evidence does not establish that Century Legend and Mr and Mrs Ripani reached an agreement that the Concept Design would form part of the Contract. As mentioned above, the Concept Design contained images and photos depicting a number of concepts, such as a selection of colour palettes and finishes for the apartment. Although it also contained images of swatches of materials and fabrics as an available range selected by Rothelowman for the Victoriana, as Century Legend submitted, it did not contain codes or specifications as to the type of materials to be used when it came to construction. 171 I am not satisfied that what was said, or that what occurred, at the meeting on 7 April 2017 was sufficiently clear to identify the terms on which apartment 1401 would be constructed or that Century Legend assented to such terms. In my assessment, it is unlikely that the parties intended to form a legally binding agreement about the construction of apartment 1401 based on the discussion at the meeting which "didn't go into a lot of detail" about images and photos depicting colour palettes and which was understood to represent the architect's "thinking" about the finishes for the apartment. Moreover, subsequent to mid-June 2017, the parties continued to discuss various concepts which formed part of the Concept Design, such as at a meeting on 22 September 2017 when the finishes, fittings and appliances were discussed with Ms Hart. This further suggests that an agreement of the kind alleged by Mr and Mrs Ripani was not formed in the period from April to mid-June 2017.

Variation Agreement and Purchaser Upgrades 172 Mr and Mrs Ripani contended that in or about May 2018, the Variation Agreement was formed whereby the parties agreed to vary the Contract to the extent necessary to change the 1401 Generic Specification to include the Purchaser Upgrades. Mr and Mrs Ripani contended that the Variation Agreement was made at a meeting with Mr Hu on 4 May 2018 at which nominations of particular finishes or selections and requests for changes to the existing specifications were made by Mr and Mrs Ripani and recorded in the Purchaser Upgrades document (as defined in paragraph 129 above). Mr and Mrs Ripani contended that the Variation Agreement was recorded in the Purchaser Upgrades document which was marked with ticks by Mr Hu and signed by Mr Hu on behalf of Century Legend. 173 Century Legend denied the existence of the Variation Agreement or that apartment 1401 was required to be constructed to include the Purchaser Upgrades. Century Legend relied on Special Condition 2.1(b) of the Contract which provided that the Contract could not be varied except in writing signed by or on behalf of the parties. Century Legend submitted that, as there was no document in writing signed on behalf of both parties, Mr and Mrs Ripani were required to prove that on 4 May 2018, the parties agreed to a variation of the Contract, which they were unable to do because final agreement as to the terms had not been reached.

Relevant principles 174 A variation is, by its very nature, a new contract which changes or extinguishes particular terms contained within an existing contract. In determining whether a variation has been effected, it is necessary to identify the ordinary requirements of contractual formation, being offer, acceptance, consideration, intention to create legal relations and certainty and completeness as to its terms: Jafari v 23 Developments Pty Ltd [2019] VSCA 201 at [190] (Whelan and Niall JJA and Sifris AJA) citing GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1; [2003] FCA 50 at 63 (Finn J).

Meeting on 4 May 2018 175 The Purchaser Upgrades document was prepared by Rothelowman. The revision history suggests the first draft was prepared on 5 February 2018. According to an email from Ms Hart to Mr Hu and others at JD Group on 7 February 2018, the Purchaser Upgrades document contained "standard inclusions" based on specifications provided by JD Group and inclusions nominated within the 1401 Generic Specification. In addition, it included "purchaser requests" and "meeting notes documenting agreed inclusions. (sent email 21.09.2017)". The reference to the "email 21.09.2017" is likely a reference to an email Ms Hart sent to JD Group on 21 September 2017 which referred to "purchaser requested items to potentially be implemented at the Purchasers cost" and listed some items that were also included in the Purchaser Upgrades document. 176 On 4 May 2018, Mr Hu met with Mr and Mrs Ripani at their private residence. Mr Hu brought two documents with him - the Purchaser Upgrades document and the WTP Costings (as defined in paragraph 129 above). The WTP Costings was prepared by WT Partnership, quantity surveyors, and headed "ESTIMATE SUMMARY". It contained estimated costings for "[i]tems to be included as standard" and "[a]dditional items provided at extra cost to client". 177 Mr Hu said the purpose of the meeting on 4 May 2018 was to discuss variations and upgrade options which would be at Mr and Mrs Ripani's cost. 178 Mr Tran had the same recollection as Mr Hu as to the purpose of the meeting. Mr Tran explained that as there were to be changes to the floor plan and additional upgrades, there was going to be a variation cost. Mr Tran said the quantity surveyor had provided a breakdown of the cost and Mr Tran and Mr Hu presented the costs to Mr and Mrs Ripani at the meeting on 4 May 2018. 179 The Purchaser Upgrades document that Mr Hu took to the meeting was revision "P2", 21 February 2018. Revision P2 included an additional column headed "JD/P", which appears to have been added by JD Group. The revision history section of the document contained the following note: P2 21.02.18 Add. Column JD/P ( 'to be provided by JD Group or Purchaser'): Issue for review, comment and approval by JD Group 180 For each item, column "JD/P" included a notation "JD" (meaning JD Group), "P" (meaning purchasers), "JD & P", "OFF SET" or "N/A". This can be seen from the Purchaser Upgrades document which Mr Hu took to the meeting, part of which is reproduced below and which shows markings comprising ticks and circles in the column "JD/P": 181 There was conflicting evidence as to whether Mr Hu put the ticks on the document before or during the meeting. In any event, Mr Ripani said that the items marked "P" were items which Mr and Mrs Ripani were to pay for. Mr Hu confirmed the ticks next to "JD" indicated that JD Group would pay for the items and that "P" meant the purchasers needed to pay. However, Mr Hu said the final decision as to the items to be paid by JD Group was a matter for the directors of JD Group and that decision had not been made at that time. 182 Mr Hu said he went through the document at the meeting and mainly discussed the upgrade options with Mr and Mrs Ripani. Mr Hu said he wrote "Confirm with Walter and Nina on 4 May 2018" on the front page and signed the document, but not in Mr and Mrs Ripani's presence. Mr and Mrs Ripani did not sign the document.

Consideration 183 Century Legend submitted, and I accept, that the Purchaser Upgrades document was to be the subject of further discussion and agreement between the parties. This is evident from the Purchaser Upgrades document which described items in terms such as "RLA finishes and detail to be reviewed and confirmed design development /documentation", "RLA planning with review of detail by Purchaser" or "RLA to design/detail for approval by Purchaser". This is also consistent with Mr Tran's evidence that, at the end of the meeting, there was still work to do to finalise the details of the fittings, fixtures and appliances. 184 In my assessment, the parties did not reach an agreement to vary the Contract to include the upgrades referred to in the Purchaser Upgrades document at the meeting on 4 May 2018. First, there was no certainty as to the particular terms of the alleged Variation Agreement because a significant number of details had to be finalised after the meeting. Secondly, I do not accept that the parties intended to be bound by upgrades that were being discussed on the basis of a mere costing estimate which was presented to the purchasers for the first time at the meeting. Having regard to the purpose of the meeting and the way in which Mr Hu went through the Purchaser Upgrades document with Mr and Mrs Ripani to identify and confirm the upgrades that they were expected to pay for, the meeting on 4 May 2018 is properly to be regarded as having been a preliminary discussion only. Furthermore, it is likely that the parties would have contemplated that final costings would be obtained before Mr and Mrs Ripani would be expected to commit to the Purchaser Upgrades. 185 Accordingly, Mr and Mrs Ripani have failed to establish the alleged Variation Agreement or that the construction of apartment 1401 was to include the Purchaser Upgrades.

Did Century Legend fail to construct apartment 1401 substantially in accordance with the Contract? 186 The parties agreed that the Contract required apartment 1401 to be constructed substantially in accordance with the Option E plan and the 1401 Generic Specifications. However, they disagreed as to the requirements of the 1401 Generic Specification and whether the apartment was, in fact, constructed substantially in accordance with the Option E plan and 1401 Generic Specification. 187 The requirements for the construction of apartment 1401 (under the Option E plan and the 1401 Generic Specification and also, on Mr and Mrs Ripani's case, according to the Concept Design and the Purchaser Upgrades), on the one hand, and comparison to the actual build of the apartment, on the other hand, involved a considerable amount of detail. To simplify matters I directed the parties to prepare a Schedule identifying their respective positions on the requirements for the construction of the apartment, the terms relied upon, and whether the actual build of apartment 1401 conformed to the Contract. 188 Annexure I at the conclusion of these reasons identifies the construction items in the Schedule that remain for determination, that is, excluding any items in the Concept Design or the Purchaser Upgrades, which I have found did not form part of the Contract. As can be seen from Annexure I, a large number of items that remain for determination include "RLA selected" items in the 1401 Generic Specification and whether Century Legend was contractually obliged to include such items in apartment 1401.

"RLA selected" items 189 As is evident from Annexure I (and therefore the Schedule prepared by the parties), Mr and Mrs Ripani contended that Century Legend was required to construct a large number of the construction items in the Schedule pursuant to the terms of the 1401 Generic Specification. Mr and Mrs Ripani contended that such items were "RLA selected" items, which is a reference to a term used in the 1401 Generic Specification. In addition, Mr and Mrs Ripani relied on numerous other documents, such as emails and plans, to prove that individual items were in fact "RLA selected", by them, with Rothelowman. 190 The parties were in dispute about the contractual force and meaning of the term "RLA selected". Century Legend submitted that the term "RLA selected" was so vague as to be unenforceable. Further, that from Century Legend's perspective, it was envisaged that there would be a process for designing the interior for apartment 1401 which would involve Rothelowman in making a selection of particular finishes and fittings for the apartment, but that process was never finalised.

Relevant principles 191 The meaning of the term "RLA selected" is to be determined objectively by reference to its text, context and purpose. In determining its meaning, it is necessary to ask what a reasonable business person would have determined that term to mean and that enquiry requires consideration of the language used, the circumstances addressed and the commercial purpose or objects. Recourse to circumstances and things external to the Contract may also be permissible to identify the commercial purpose or objects where that task is facilitated by an understanding of the background and context of the transaction: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]-[51] (French CJ, Nettle and Gordon JJ).

RLA selection 192 Under the Contract of Sale, the "Building Works", which Century Legend was required to perform as part of the purchase price, were the construction works in accordance with the "Specification" attached to the Contract of Sale. However, the parties also agreed that the 1401 Generic Specification was to form part of the Contract. I consider that the reference in the Contract of Sale to the "Specification" should be taken to include the 1401 Generic Specification. Accordingly, the "Building Works" that Century Legend were required to perform at its cost included construction works in accordance with the 1401 Generic Specification. 193 The 1401 Generic Specification referred to a number of items as "RLA selected", such as engineered timber floorboards, floor tiles, joinery, marble walls and stone benchtops. By way of examples, the 1401 Generic Specification referred to "RLA selected engineered floor boards" for general floor finishes and "RLA selected natural stone" for kitchen benchtops and splashbacks. 194 While the parties were in dispute as to the meaning of the term "RLA selected", and whether that term had any contractual force, both parties suggested and therefore contemplated that there was to be a process of selection of fittings and finishes for the apartment that was to involve Mr and Mrs Ripani and Rothelowman. Mr and Mrs Ripani's position was that the process had resulted in specified items being "RLA selected" and Century Legend's position was that the process was never finalised. 195 It is to be noted that the Interior Finishes Schedule which Rothelowman had prepared for the Victoriana included a selection of colours and finishes from which to choose for the engineered timber floorboards, paint, floor tiles, wall tiles, laundry, bathroom and kitchen benchtops for the premium apartments. 196 Ms Hart gave evidence that, although she agreed that Mr and Mrs Ripani had expressed preferences for certain finishes along the way, they did not get to the stage of actually selecting finishes. In early 2019, Ms Julia Meng, an interior designer at Rothelowman, began assisting Ms Hart on the Victoriana due to Ms Hart's workload on other projects and Ms Meng eventually took over Ms Hart's role. Ms Meng's evidence was that the "RLA selected" items had to be agreed with Mr and Mrs Ripani before they were finalised, and that selection process was never completed.

Consideration 197 In the 1401 Generic Specification, the term "RLA selected" was used in the context of fittings and finishes for the apartment which were to reflect the purchasers' preferences. It applied to significant items that the parties contemplated would be included as part of the purchase price, or in other words at JD Group's cost. In my assessment, the term on its own was too vague to have any contractual meaning. However, determining its meaning by reference to the text, context and purpose, I consider that "RLA selected" items meant items that were to be selected under a process that involved Mr and Mrs Ripani selecting fittings and finishes with Rothelowman, which process had to be finalised to signify that agreement had been reached in relation to Mr and Mrs Ripani's preferences for the fittings and finishes for the apartment. 198 I do not consider that Century Legend was contractually bound to include the "RLA selected" items in the construction of apartment 1401 because the selection process had not been finalised. Whilst Mr and Mrs Ripani gave evidence that Ms Hart showed them samples of various stones and timber and that they had expressed a preference for a light colour palette, no evidence was adduced to show that there was an actual process of selection involving Mr and Mrs Ripani selecting fittings and finishes with Rothelowman which had been finalised. That is, evidencing that Mr and Mrs Ripani had finalised and signified their preferences for fittings and finishes for the apartment. I do not accept that the parties contemplated, or a reasonable businessperson in their position would have considered, that under a contract of this kind involving significant expenditure on fittings and finishes that were to reflect the purchasers' preferences, that items that were to be "RLA selected" would or could be agreed along the way in the casual or piecemeal fashion suggested by Mr and Mrs Ripani. That would have been unworkable. 199 I therefore find that in respect of the items in the Schedule for which Mr and Mrs Ripani relied on the term "RLA selected" in the 1401 Generic Specification, Century Legend was not obliged to construct apartment 1401 to include those items because the overall process of selection for the "RLA selected" items had not been finalised.

Remaining items in the Schedule 200 The remaining items in the Schedule include the construction of the openings on the western façade of apartment 1401 as well as other miscellaneous items. Given the significance of the openings, I deal with the openings separately.

The openings on the western façade 201 In its reply, Century Legend admitted that the Option E plan was part of the Contract and that it was a term of the Contract that the works would be carried out substantially in accordance with the Option E plan. The Option E plan showed three openings on the western façade. The main opening was ~ 4m wide (i.e., four glass panels) and centred on the fireplace at the end of the serpentine wall. Nevertheless, at the trial, whilst denying any breach of the Contract, Century Legend stated that the openings on the western façade were constructed in accordance with the Option I plan, which showed only two openings, with the widest opening (to the south) of 3.416m. After this inconsistency was raised with Century Legend, Century Legend amended its reply during the course of the trial. Whilst Century Legend still admitted that the Option E plan required Century Legend to construct three openings on the western façade, in its amended reply Century Legend stated that at various meetings from 26 May 2017 to 24 May 2019 Mr and Mrs Ripani "requested that the main opening to the balcony be made as wide as possible" and that, in order to make one of the balcony openings as wide as possible, it was necessary to reduce the number of openings to two and position them as they have been constructed. 202 I observe that Century Legend did not plead, or seek to prove, that the Contract was varied to include the Option I plan, showing only two openings on the western façade. 203 Century Legend's position, as best as it could be understood, was that: (a) on a number of occasions, in meetings with Ms Hart and Mr Hu in 2017, Mr and Mrs Ripani requested that the door to the western balcony be opened as wide as possible and the widening request was reiterated in a meeting between Mr and Mrs Ripani, Ms Hart and Ms Meng on 24 May 2019; (b) construction drawing VIC-C-1140 was subsequently prepared in accordance with the request made on 24 May 2019; (c) the doors were constructed in accordance with drawing VIC-WW-1142 with a larger sliding door (to the south) with an opening width of 3.416m and a sliding door (to the north) with an opening width of 1.49m; (d) in order to construct the main opening to the western balcony as wide as possible, it was necessary to reduce the number of openings to two and position them as they have been constructed; (e) those changes were made to comply with Mr and Mrs Ripani's wishes; and (f) therefore, Mr and Mrs Ripani cannot rely on the two openings on the western façade to allege a breach of the Contract by Century Legend. 204 There are three further matters to be noted. First, Century Legend asserted that it was not possible to build three openings on the western façade. Secondly, Century Legend instructed Hickory to construct the openings in accordance with the Option I plan. Thirdly, as to the evidence relied upon to prove the matters in sub-paragraphs 203(d) and (e), Counsel for Century Legend submitted that: (a) the Court should find that the two openings were built to give effect to Mr and Mrs Ripani's request as a matter of inference because it was not possible to construct three openings along the western façade; and (b) Century Legend relied on the evidence of Ms Meng in relation to the meeting on 24 May 2019 and what happened after that.

(i) The reasons for the changes to the floorplans and the openings 205 As has been mentioned, the openings on the western façade were constructed in accordance with the Option I plan at Annexure H, with a larger opening to the south with an opening width of 3.416m. On the other hand, the Option E plan at Annexure G showed three openings on the western façade with the main opening of ~ 4m in width, centred on the fireplace at the end of the serpentine wall. A side-by-side snapshot of the western façades in the Option I and Option E plans is reproduced below on the left and right respectively. 206 Century Legend constructed two openings on the western façade as shown in drawing VIC-WW-1142, consistently with the Option I plan. 207 Ms Hart was the main contact point between Mr and Mrs Ripani and Rothelowman. However, she was an interior designer and she gave evidence that she did not make changes to the floor plans. As Ms Hart explained in her evidence, if Rothelowman was to change a floor plan to give effect to a request made by Mr and Mrs Ripani in 2017, Ms Hart would have had to communicate that request to a draftsperson or architect at Rothelowman and they would then update the architectural model. 208 Ms Meng began assisting Ms Hart on the Victoriana in early 2019 due to Ms Hart's workload on other projects. Ms Meng's first meeting with Mr and Mrs Ripani was on 24 May 2019, at which time the Option I plan was presented to Mr and Mrs Ripani showing two openings on the western façade. 209 Century Legend did not adduce any evidence to explain how or why the Option I plan came into existence. Until the Option I plan was produced, all other floor plans shown to Mr and Mrs Ripani had three openings on the western façade. The Option I plan was the first floor plan that showed only two openings on the western façade and it was shown to Mr and Mrs Ripani for the first time at the meeting on 24 May 2019. 210 Ms Hart could not explain how or why the floor plans went from three openings on the western façade to only two openings. Ms Hart said she did not know why the opening centred on the fireplace, which they had always discussed, was suddenly replaced with the two openings shown on the Option I floor plan. Ms Hart said that she could not recall describing the change in the openings on the Option I plan with Mr and Mrs Ripani because she was not sure why they had changed. 211 Century Legend submitted that the widening request was reiterated in a meeting between Mr and Mrs Ripani, Ms Hart and Ms Meng on 24 May 2019. Mrs Ripani's evidence was that at the meeting she asked if the door was going to be bigger or if it was still going to be 6.4 metres. The background to that enquiry was that, on 9 October 2018, Mr Hu had forwarded an email to Mr and Mrs Ripani that referred to a multitrack sliding door system providing a 6.4m opening. Mr and Mrs Ripani both gave evidence that, at the meeting on 24 May 2019, Mrs Ripani asked Ms Hart to show them where the 6.4 metre opening would be by drawing it on the plan. In her evidence, Ms Hart was taken to the Option I plan in her evidence and she noted a "squiggly line" on the openings on the western façade and her handwritten note "6m". Ms Hart said that, at the meeting, there was a discussion about the opening being 6 metres in width and Mrs Ripani said she wanted the opening to be made as wide as possible. 212 After the meeting, but also on 29 May 2019, Ms Meng sent an email to Cameron de Mooy, Project Manager at Hickory, which said "Walter and Nina would like to widen their façade doors to Queens Road side (nom. 6000 wide, if possible - as per attached images from marketing material)". Ms Meng attached the Option I floor plan with the handwritten marks made by Ms Hart and Ms Meng at the meeting on 24 May 2019. Century Legend submitted that the "widening" referred to in Ms Meng's email was a widening from the 4m opening shown on the Contract, by which I infer it meant the Option E plan. 213 On 2 July 2019, Mr de Mooy sent an email to Ms Hart, Ms Meng and others (which was on forwarded to Mr and Mrs Ripani) stating: Further to our meeting of 20-Jun-19 and as committed to Walter, I have inquired and happily advise Hickory are investigating alternative facade siding door options in order to achieve a minimum 6 metre clear span opening. 214 Century Legend submitted that construction drawing VIC-C-1140 was subsequently prepared "in accordance with the requests of 24 May 2019.". 215 A snapshot of the 6m doorway requested by Mr and Mrs Ripani and the annotated Option I plan was sent to Mr and Mrs Ripani. Century Legend submitted that the snapshot was sent by Mr de Mooy. That was not clear on the email but, in any event, it showed a potential 6m opening on the western façade imposed over a 3.416m opening between the indoor entertainment area and the external terrace. There was also a 1.49m opening at the northern end of the terrace. These were the opening widths shown on the Option I plan. 216 In its closing submissions, Century Legend submitted that: In order to construct the main opening to the western balcony as wide as possible, it was necessary to move it from the centre of the balcony façade to the south. The design of the double-stacker sliding door required a fixed panel on either side. The single stacker door also required a fixed panel on either side. It would not be possible to construct a door with a width of 3.416m and a further two doors on the western façade due to the need for Glass panels to provide structural support. Further, widening the opening to the northern balcony necessitated that door being moved so that fixed panels could be placed on either side of the double-stacking mechanism. The for-construction drawing shows a single large opening onto the northern balcony with an opening width of 3.145m [sic]. 217 Century Legend said that it relied on the witness outline of Ms Meng. In effect, the evidence in Ms Meng's outline (which was tendered without objection) was that: (a) in respect of the larger sliding door on the western façade, the door system consisted of six panels (four sliding and two fixed), the width of the set of sliding doors was 6.120m, the doors when opened had an access path width of 3.416m, on each side of the sliding panels was a window panel that received the stacking panels (Mechanical Panel) and on each side of the Mechanical Panel was a single panel of glass between two mullions that provided additional structural support necessary for the Mechanical Panel (Glass Panels); (b) there was also a single sliding door to the north of the double sliding door which consisted of two sliding panels and two mechanical panels that receive the sliding panels; and (c) it was not possible to replace the Glass Panels with doors, as the Glass Panels provide structural support to the double sliding door. 218 In addition, Ms Meng's witness outline said: It would not be possible to construct a door with a width of 3.416m in addition to two other doors on the western façade because you need room for two panels that are not part of the sliding mechanism. 219 Mr and Mrs Ripani did not object to Ms Meng's evidence. Rather, their Counsel submitted that Century Legend had failed to adduce any evidence whatsoever (particularly expert evidence) which would enable it to make good the proposition made by Counsel for Century Legend in closing submissions that it was impossible to construct three doorways in accordance with the Option E plan, as a consequence of which two doorways were constructed in accordance with the Option I plan. 220 As mentioned above at paragraph 196, Ms Meng is an interior designer. Ms Meng was not qualified to give evidence about the construction of the openings from a structural engineering point of view. At most, Ms Meng's evidence was an explanation of the door systems as comprising sliding doors, stacking panels and fixed panels. 221 In my assessment, the conclusory assertion in Ms Meng's outline of evidence, that it "would not be possible to construct a door with a width of 3.416m in addition to two other doors on the western façade", was not capable of proving that it was not possible to construct three doorways or openings in accordance with the Option E plan. Further, Ms Meng's evidence did not establish that the reason the doors were constructed in the way that they were, was to give effect to the request that the doors be "as wide as possible". 222 Century Legend did not adduce any evidence that was capable of proving that it was not possible to construct the apartment in accordance with the Option E plan or that three openings could not be built. Nor did Century Legend adduce any evidence to prove that construction drawing VIC-C-1140 was prepared "in accordance with the requests of 24 May 2019". Nor did it adduce any evidence to prove that in order to construct the main opening to the western balcony as wide as possible, it was necessary to reduce the number of openings to two and position them as they have been constructed. 223 In closing submissions, Senior Counsel for Century Legend submitted that the proposition that only two doors could be constructed was to be inferred from the evidence and the way in which the plans evolved to meet the purchasers' requests. 224 It may be accepted that inferences from actual (proven) facts are as much part of the evidence as facts themselves. In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, the Court (Dixon, Williams, Webb, Fullagar and Kitto JJ) stated: In questions of this sort where direct proof is not available it is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. 225 For reasons that I will now explain, I am not prepared to draw an inference that only two doors could be constructed or that two doors were constructed to meet the request for a wide opening. 226 First, the reason the Option I plan, showing two doors, came into existence was unexplained. 227 Secondly, on 2 July 2019, Mr de Mooy sent an email which was on forwarded to Mr and Mrs Ripani saying Hickory were "investigating alternative façade sliding door options in order to achieve a minimum 6 metre clear span opening". 228 After Mrs Ripani queried whether 6m was achievable, Mr de Mooy replied on 3 July 2019: Openings greater than 3.4m will require detraction form [sic] the current design brief and parameters of a lower compliance (AS2047), which will require both façade engineer and building surveyor approval. 229 Century Legend did not adduce any evidence as to whether or not engineering and building surveyor approval was ever sought following Mr de Mooy's email. Nor did Century Legend adduce any evidence that was capable of proving that a 63m opening was not possible. It is thus open to infer that it did not construct or investigate the construction of a 6m opening for its own self-interested reasons, such as to minimise the cost of constructing a wider opening. Accordingly, there being competing inferences available on the facts, the true position would be a matter of conjecture, and I am not prepared to infer that it was only possible to build two openings on the western façade. 230 Thirdly, and finally, Mr and Mrs Ripani submitted that the weight to be given to the evidence adduced by Century Legend was to be assessed by reference to the evidence available to Century Legend, relying on the principle in Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969 at 65. Century Legend called Ms Hart, but it did not call any other witnesses from Rothelowman to explain the reasons for the changes to the openings in the floor plans. Century Legend was in a position to call the project builder, engineer and other qualified experts who might have given evidence about construction matters. It is noted that Century Legend intended to call Mr de Mooy, Project Manager at Hickory, however, Century Legend did not call Mr de Mooy and called Ms Meng instead. 231 Having regard to these matters, Century Legend has not established that the plans changed to include two openings to comply with Mr and Mrs Ripani's requests that the opening be as wide as possible. Century Legend has failed to establish that it was necessary to reduce the number of openings to the balcony to two, and to position them where they did, to comply with Mr and Mrs Ripani's requests that the openings be "as wide as possible".

(ii) Failure to construct the openings on the western façade in accordance with Option E plan 232 Century Legend was contractually required to carry out the works substantially in accordance with the Option E plan. Having regard to my findings above, Century Legend was not excused from the obligation to construct the three openings on the western façade in accordance with the Option E plan. 233 Century Legend admitted that it did not construct the openings in accordance with the Option E plan and instead constructed only two openings on the western façade. Accordingly, Century Legend was in breach of the Contract. This raises the issue of the materiality of the breach.

(iii) Materiality of the breach 234 Mr and Mrs Ripani submitted that apartment 1401 as constructed was substantially different to that which Century Legend was contracted to convey. Further, the fact that the apartment was not constructed as required constituted a substantial departure from the Contract. 235 Mr and Mrs Ripani relied upon the equitable rule in Flight v Booth (1834) 1 Bing NC 370; (1834) 131 ER 1160. 236 In Flight v Booth, Tindal CJ stated (at 1162-1663): In this state of discrepancy between the decided cases, we think it is, at all events, a safe rule to adopt, that where the misdescription, although not proceeding from fraud, is in a material and substantial point, so far affecting the subject-matter of the contract that it may reasonably be supposed that, but for such misdescription, the purchase might never have entered into the contract at all, in such case the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation. Under such a state of facts, the purchaser may be considered as not having purchased the thing which was really the subject of sale… 237 Although the principle as stated in Flight v Booth was confined to misdescriptions of title, it has come to reflect a more general principle that purchasers cannot be forced to accept (even with compensation) a property that is substantially or materially different from that which they contracted to purchase: see Higgins v Statewide Developments Pty Ltd (2010) 14 BPR 27,293; [2010] NSWSC 183 at [51] (Barrett J). 238 Subsequent authorities have applied the principles in Flight v Booth beyond misdescriptions of title: see Tiplady v Gold Coast Carlton Pty Ltd (1984) 3 FCR 426 (Fitzgerald J); Victorsen v Easy Living Holdings Pty Ltd (2019) 19 BPR 39,893; [2019] NSWSC 1721 (Darke J). I accept that the principle will be of application where the misdescription of the property or departure from the contract is substantial or material: see D'Souza v Wedgewood Road Hallam No 1 Pty Ltd [2010] FCA 765 at [86] (Gordon J) and Tiplady at 445 (Fitzgerald J). 239 Although Century Legend relied on General Condition 3.2 of the Contract (which provided that the purchaser is not entitled to make an objection or claim compensation for any alleged misdescription of property), Century Legend conceded in closing submissions that the principle in Flight v Booth can extend beyond misdescriptions of title. 240 In Tiplady, the applicants had agreed to purchase a penthouse unit which, according to the floor plan, was to contain a private vestibule into which a separate lift and fire-stairs would directly open. When constructed, the penthouse included a common lobby rather than the proposed private vestibule. Fitzgerald J found that it was evident from the pre-contractual discussions and the contract itself that the private vestibule was a most material and important matter and that the applicants would not have entered into the contract but for the proposal in respect of the private vestibule. Fitzgerald J held that the applicant was entitled to recover his deposit because the unit as constructed did not meet the description and accord substantially with the plan. 241 In Victorsen, the purchasers were entitled to rescind a contract of sale because the property as built was materially and substantially different from that which the first defendant promised to convey, or represented that it would convey, in that an outdoor area intended to be covered by a lawn was adversely affected by the construction of an on-site stormwater detention tank beneath the lawn. Applying the rule in Flight v Booth, Darke J found (at [77]) that the discrepancy or deficiency between the vendor's promise and performance was so substantial as to give the purchasers something entirely different from that which they contracted to acquire. 242 The test is, objectively, whether a reasonable person in the position of the purchaser would have taken the view that he or she was not getting substantially the property for which he or she contracted to obtain: Carter v Mehmet (2021) 20 BPR 41,709; [2021] NSWCA 286 at [145] (Meagher, Gleeson and Payne JJA) citing Frankel v Paterson (2015) 18 BPR 35,391; [2015] NSWSC 1307 at [34] (Young AJA); Tiplady at 445 (Fitzgerald J). 243 I consider that the openings as constructed were substantially and materially different to that which Mr and Mrs Ripani contracted to buy. First, according to the Option E plan which formed part of the Contract, the apartment was meant to have three openings with the main ~ 4m opening centred on the fireplace. Even on Century Legend's case, a key feature of the Option E plan was the main opening centred on the fireplace and the connection between the interior area (where the fireplace was located) and the external entertainment area. Ms Hart had discussed the connection between the interior and exterior of the apartment with Mr and Mrs Ripani. Mr and Mrs Ripani were meant to be able to enjoy the fireplace from the outdoor entertainment and pool area. The apartment as constructed did not have an opening centred on the fireplace, which would have enabled Mr and Mrs Ripani to enjoy the fireplace from the outdoor entertainment area. 244 Secondly, Mr and Mrs Ripani wanted and were expecting an apartment with an opening like the render with a flow through design that allowed the internal and external areas to convert seamlessly into one space. Leaving to one side that an apartment that looked like the render could not be built, the apartment as constructed did not have an opening which allowed the internal and external areas to convert seamlessly into one space. This is obvious from looking at the floorplan of the apartment as constructed, as compared to the Option E plan. The apartment as constructed had two openings from which the exterior entertainment areas could be accessed from the indoor dining area and the indoor entertainment area. Whilst a connection from the interior to the exterior of the apartment was physically possible through the two openings, the connectivity between the interior and the exterior of the apartment was not seamless and did not flow through because the two openings were to the north and south of the western façade and were separated by approximately four fixed panels. The fixed panels were effectively located in the centre of the straight section of the western façade (before the façade curves to the north) at the end of the serpentine wall, where the main ~ 4m opening centred on the fireplace was originally located. 245 The large free span opening of the doors as depicted in the render was an important feature to Mr and Mrs Ripani and central to their decision-making to sign the Contract: PJ [17], [21]; FC [229]. Mr and Mrs Ripani said, and I accept, that they would not have purchased apartment 1401 if it was explained to them that they were getting three openings and not an opening like the render. In these circumstances it may safely be inferred that they would not have purchased apartment 1401 as constructed, that is, with only two openings, as shown on the Option I plan. Furthermore, in my view, a reasonable person in the position of Mr and Mrs Ripani would have taken the view that they did not get substantially the property they contracted to purchase. 246 For those reasons, Century Legend was in material breach of the Contract and Mr and Mrs Ripani were entitled to accept the breach as a repudiation and rescind the Contract.

The serpentine wall 247 Mr and Mrs Ripani contended that Century Legend was required to construct apartment 1401 to include an unbroken feature wall between the entertainment area and the living room, referred to as the serpentine wall. They relied upon the fact that the Contract included the Option E plan, which did not show a walkthrough in the serpentine wall. 248 However, Century Legend contended that at the meeting on 24 May 2019 with Ms Hart and Ms Meng, Mr and Mrs Ripani stated that they wanted a walkthrough in the serpentine wall and the serpentine wall was constructed with a walk through as requested. 249 Mr and Mrs Ripani denied requesting a walkthrough in the serpentine wall. However, Ms Hart's evidence was that she took the Option I plan with her to the meeting with Mr and Mrs Ripani on 24 May 2019 and made marks on the plan to show the walkthrough requested by Mr and Mrs Ripani. Ms Hart said the green diagonal lines she marked on the plan was to indicate the continuation of the herringbone timber flooring through the walkthrough area. Ms Meng also gave evidence that the walkthrough was discussed and was shown as the hatched area in green on the serpentine wall on the plan which represented a continuation of the herringbone timber flooring. 250 I am satisfied on the balance of probabilities that Mr and Mrs Ripani requested a walkthrough of the serpentine wall between the dining room and the living area at the meeting on 24 May 2019 and Ms Hart noted that request on the plan in the manner described above. Accordingly, by including the walkthrough in the serpentine wall, Century Legend did not fail to construct this aspect of the apartment in accordance with the Contract.

Remaining items for determination 251 As to the remaining items in the Schedule for determination, Mr and Mrs Ripani relied on the Option E plan or the 1401 Generic Specification to submit that Century Legend was required to construct apartment 1401 to include those items. The remaining items in the Schedule, and Century Legend's response as to whether those items were included in the apartment, are set out below in Table 2: Table 2 Item Century Legend's response Island bench between the kitchen bench and the dining room The island bench was loose furniture, not fixed, and so not included. Sliding doors to each side of the serpentine wall to expose or cover equipment and shelving The process for RLA selection was never finalised and so it was not possible to construct in accordance with this requirement. Bespoke RLA designed unit containing drawer unit with shelving over it as part of the serpentine wall The process for RLA selection was never finalised and so it was not possible to construct in accordance with this requirement. Bio-ethanol custom fireplaces in the serpentine wall Building regulations prohibit a fuel source stored in a single occupancy. Temperature-controlled wine room, capable of keeping wine at its cellaring temperature of 14 degrees Celsius The wine room has its own AC temperature control. Two under-bench wine fridges and two under-bench minibars, with a stone benchtop above, in the wine room Century Legend's solicitors sought instructions from Mr and Mrs Ripani via their solicitors and instructions were not provided. Full height wine fridges were installed - minor breach. Pivot hinged door to the wine room Wine room has a hinge door. Bespoke RLA designed unit and upholstered panel surround with drawer and cupboard units underneath to the bar area Century Legend's solicitors sought instructions from Mr and Mrs Ripani via their solicitors and instructions were not provided. CBUS home automation system throughout the apartment, including a connection to allow it to operate the window furnishings Dynalite home automation system was installed but window furnishings were not permitted under the Owners Corporation rules - minor breach. Ducted air-conditioning throughout the apartment with the condenser situated in a separate air-conditioning room Ducted air conditioning was installed. Change to air conditioning necessary due to building requirements. Outdoor BBQ having a granite countertop, an ice-well with connected drainage and an integrated fridge Century Legend's solicitors sought instructions from Mr and Mrs Ripani via their solicitors and instructions were not provided. To the extent there is any breach, it relates to the absence of an ice-well - minor breach. Cold water tap on the balcony Cold water tap was installed. Bespoke fireplace joinery in the master bedroom and the entertainment room Mr and Mrs Ripani did not pay for fireplaces as requested and so the joinery was deleted. Alternatively, joinery was built in accordance with RLA Reg G construction drawings and so all joinery, shelves and finishes were "RLA bespoke". Bespoke joinery around the master bed head Century Legend's solicitors sought instructions from Mr and Mrs Ripani via their solicitors and instructions were not provided. Alternatively, joinery was built in accordance with RLA Reg G construction drawings and so all joinery, shelves and finishes were "RLA bespoke". Master bedroom study in accordance with the Option E plan and to a joinery design to be produced by Rothelowman, which Rothelowman produced in document A13.606B dated 4 October 2019 No response.

252 In support of their position on the requirements and failure to construct apartment 1401 to include the above items, at the trial Mr and Mrs Ripani provided a Pleadings and Evidence Matrix which referred to documents such as emails and plans in support of each item. As shown in the above table, Century Legend effectively conceded that some items were not included, but proceeded to give an explanation as to why it was not required to include the particular item. 253 Mr and Mrs Ripani submitted that the departures from the Contract were material and noted that Century Legend did not adduce any evidence as to the reasons for the departures. They relied on evidence that Century Legend's departures from the Contract reduced the cost of construction by at least $215,000, which Mr Hu confirmed was a saving to Century Legend. I consider that even if Century Legend was required to include some or all of the items listed in Table 2 and it failed to do so, that breach or those breaches would not have justified a termination of the Contract. First, Century Legend submitted, and I accept, that compliance with the requirements in the 1401 Generic Specification was not an essential term of the Contract. In my assessment, the overall terms of the Contract suggested that the parties did not contemplate that compliance with the 1401 Generic Specification was an essential term of the Contract: see Special Condition 16.3(b) which allowed Century Legend, without reference to Mr and Mrs Ripani to make any non-material alterations that Century Legend either deemed desirable or necessary, and Special Condition 16.3(c) which allowed Century Legend and the Builder to make any change to the "Specifications" deemed necessary. 254 Secondly, the failure to comply with the requirements of the 1401 Generic Specification was not a sufficiently serious breach going to the root of the Contract: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 at [54] (Gleeson CJ, Gummow, Heydon and Crennan JJ); or a repudiation of the whole of the Contract or a fundamental obligation under it: Koompahtoo at [44] (Gleeson CJ, Gummow, Heydon and Crennan JJ). In my assessment, damages would have been an adequate remedy for failing to comply with the 1401 Generic Specification. Moreover, Century Legend should have been given an opportunity to rectify the relevant breaches. 255 In addition, Century Legend: (a) relied on General Condition 27.1 of the Contract, which provided that a party would not exercise any rights arising from the other party's default, other than the right to receive interest and sue for money owing, until the other party was given and failed to comply with a written default notice; (b) relied on Special Condition 42.1(d) of the Contract, which provided that the Purchaser will not be entitled to exercise any "Excluded Rights", which was defined to include the right to avoid or terminate the Contract, in respect of the building works after the settlement date; and (c) submitted that because Mr and Mrs Ripani did not inspect apartment 1401 before settlement was due, Century Legend was not given the opportunity to rectify any alleged non-compliances and, therefore, and by reason of the terms of the Contract referred to above in sub-paragraphs 255(a) and (b), Mr and Mrs Ripani were not entitled to exercise any right other than a right to sue for money owing. 256 Mr and Mrs Ripani gave evidence that they had tried to organise an inspection of apartment 1401 on 7 September 2021, however, the inspection was cancelled. Mr and Mrs Ripani said they were informed by a solicitor acting for Century Legend that Century Legend, or JD Group, did not want them on the premises. If that was correct, that might have been a breach of the Contract by Century Legend that would have prevented it from relying on the terms of the Contract referred to above in sub-paragraphs 255(a) and (b). However, whether Century Legend relied on its rights under the Contract or under the general law, the result would be the same, namely, Mr and Mrs Ripani would not have been entitled to terminate the Contract on the ground of the non-compliances in Table 2. Their rights would have been limited to a right to sue for damages for breach of the Contract. 257 As set out above at paragraph 246, I have found that the failure to construct the three openings on the western façade in accordance with the Option E plan was a material breach of the Contract and that Mr and Mrs Ripani were entitled to rescind the Contract. For completeness, I note that Mr and Mrs Ripani's alleged failure to inspect apartment 1401 prior to settlement would not have prevented them from relying on Century Legend's failure to construct three openings in accordance with the Option E plan. That is because any failure to inspect did not deprive Century Legend of the opportunity to rectify this non-compliance because, on Century Legend's case, it was not possible to construct three openings on the western façade. 258 In light of the above, it is unnecessary to resolve the question whether Century Legend was required, but failed, to construct apartment 1401 to include the items in Table 2 because, even if Century Legend was required, but failed, to construct apartment 1401 to include some or all of the items listed in Table 2, the non-compliances would not have been a material breach of the Contract.

Should Century Legend be estopped? 259 In the alternative, Mr and Mrs Ripani contended that Century Legend represented that, if Mr and Mrs Ripani entered into the Contract, Century Legend would build apartment 1401 in accordance with the 1401 Generic Specification, the Option E plan and the Concept Design. Mr and Mrs Ripani contended that, therefore, Century Legend should be estopped from denying that it was obliged to construct apartment 1401 substantially in accordance with the 1401 Generic Specification, the Option E plan and the Concept Design. 260 For the reasons set out above in paragraphs 159-171, in my assessment, Century Legend did not agree, and nor did it represent, that it would build apartment 1401 in accordance with the Concept Design. That is sufficient to dispose of the estoppel claim because Mr and Mrs Ripani have not established that Century Legend should be estopped from denying any alleged representation to the effect that it would build apartment 1401 substantially in accordance with the 1401 Generic Specification, the Option E plan and the Concept Design. 261 Although it is unnecessary for me to decide, I make the following findings in relation to Mr and Mrs Ripani's estoppel claim. 262 First, Century Legend submitted that even if there was a substantial breach of the contract, which was denied, it would not be unconscionable to allow Century Legend to depart from the Contract because Mr and Mrs Ripani failed to inspect apartment 1401 and, therefore, deprived Century Legend of the opportunity to rectify the breach. For the reasons set out above at paragraphs 234-246, the failure to construct three openings on the western façade in accordance with the Option E plan was a material breach of the Contract. Further, the failure to inspect apartment 1401 did not deprive Century Legend of the opportunity to rectify that breach because, on Century Legend's own case, it was not possible to construct three openings on the western façade. 263 Secondly, Century Legend submitted that the estoppel claim should fail because Mr and Mrs Ripani have not suffered any detriment because they elected not to proceed with the Contract. I consider that in making this submission, Century Legend focuses on the wrong point in time. In my view, detriment was established by Mr and Mrs Ripani entering into, and therefore incurring obligations under, the Contract in reliance on the Representations. 264 Thirdly, Century Legend submitted that Mr and Mrs Ripani failed to establish reliance on the Representations. because their position was that Ms Hart failed to explain the locations of the openings on the balcony and, therefore, they could not have relied on there being three openings as indicated in the Option E plan. There is no force in this argument because the parties agreed that the Option E plan formed part of the Contract. Mr and Mrs Ripani must have entered into the Contract on the basis that the Option E plan formed part of the Contract, regardless of whether they understood the plan. 265 Finally, Century Legend submitted that estoppel is not available because substantial restoration is not possible. This is not an absolute proposition. Equitable relief may have been able to be fashioned, and additional relief might have been able to be granted, to achieve practical justice and restore the parties to the status quo as far as it was possible to do so: Maguire v Makaronis (1997) 188 CLR 449 at 496-7 (Kirby J); Jams 2 Pty Ltd v Stubbings (No 4) (2019) 59 VR 1; [2019] VSC 482 at [12] (Robson J).

Did Century Legend repudiate the Contract? 266 Mr and Mrs Ripani submitted that Century Legend repudiated the Contract by instructing Hickory as it did in relation to the construction of apartment 1401, by calling for settlement and by issuing the Notice of Default. 267 Repudiation refers to conduct which evinces an unwillingness or inability to render substantial performance of the Contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the Contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the Contract as a whole or of a fundamental obligation under it: Koompahtoo at [44] (Gleeson CJ, Gummow, Heydon and Crennan JJ). 268 Having regard to the findings I have made, Century Legend's failure to construct three openings on the western façade, as shown on the Option E plan, was a breach evincing an intention not to be bound by the Contract, or to fulfil the Contract only in a manner substantially inconsistent with Century Legend's contractual obligations, and was thus a repudiation of the Contract. Furthermore, by proceeding to instruct Hickory to construct only two openings, Century Legend manifested a lack of willingness or inability to perform the Contract, and in those circumstances Mr and Mrs Ripani were entitled to conclude that the Contract would not be performed substantially according to its terms.

Was Century Legend ready, willing and able to perform the Contract? 269 In order for Century Legend to rely upon Mr and Mrs Ripani's alleged repudiation and to terminate the Contract, Century Legend must have been ready, willing and able to settle the sale of apartment 1401 according to the terms of the Contract: Foran v Wight (1989) 168 CLR 385; [1989] HCA 51 at 402 (Mason CJ), 427 (Brennan J). 270 I have found that the Contract required Century Legend to construct apartment 1401 in accordance with the Option E plan, which showed three openings on the western façade, and that Century Legend failed to construct apartment 1401 substantially in accordance with the Contract. Moreover, Century Legend's position was that it was not possible to build three openings on the western façade and it proceeded to instruct Hickory to construct apartment 1401 in accordance with the Option I plan, which showed two openings on the western façade. 271 I have found that Century Legend's failure and refusal to construct three openings on the western façade was a repudiation of the Contract. Furthermore, it is apparent that Century Legend had resolved not to, or was not willing to, perform its obligations as required by the Contract. As a result, it was not ready, willing and able to perform the Contract and would not have been entitled to rely on any alleged repudiation of the Contract by Mr and Mrs Ripani in order for it to terminate the Contract.

Did Mr and Mrs Ripani repudiate the Contract? 272 The initial trial judge found that Mr and Mrs Ripani elected to rescind the Contract by bringing the first proceeding: PJ [246]. The parties are bound by that determination. 273 Century Legend submitted that by electing to rescind the Contract by bringing the first proceeding, Mr and Mrs Ripani were not ready, willing and able to settle the purchase and therefore repudiated the Contract. 274 I have found that Mr and Mrs Ripani are entitled to rescind the Contract because of Century Legend's misleading and deceptive conduct. I have also found that Mr and Mrs Ripani were entitled to terminate the Contract by reason of Century Legend's repudiatory conduct. 275 In light of those findings, it is unnecessary for me to consider whether Mr and Mrs Ripani were ready, willing and able to settle the purchase of apartment 1401. However, if I was required to decide the issue, I would find that they clearly were not willing to do so, because they considered that they were not obliged to do so. This matter is of no consequence given my finding that Mr and Mrs Ripani were not obliged to settle the purchase of apartment 1401.

Were Mr and Mrs Ripani obliged to settle the purchase? 276 Mr and Mrs Ripani were not obliged to settle the purchase of apartment 1401 because the Contract had been rescinded or terminated due to Century Legend's misleading and deceptive conduct or, alternatively, repudiation of the Contract.

Century Legend's claim for relief 277 In the originating application filed in the second proceeding Century Legend sought, by way of relief, payment of the amount of $958,000, that being the amount of the deposit paid under the Contract by way of bank guarantee, plus interest and damages for breach of the Contract. 278 In light of my finding that Mr and Mrs Ripani were entitled to rescind the Contract, Century Legend is not entitled to the relief claimed in the second proceeding. In the event that I am wrong, and Century Legend was entitled to terminate the Contract, I make the following findings in relation to Century Legend's claim for relief.

Terms of the Contract 279 Century Legend relied upon General Conditions 25, 26 and 28 and Special Conditions 27 and 29 of the Contract in support of its claim for relief. 280 General Condition 25 of the Contract provides: A party who breaches this contract must pay to the other party on demand: (a) compensation for any reasonably foreseeable loss to the other party resulting from the breach; and (b) any interest due under this contract as a result of the breach. 281 General Condition 28 of the Contract provides: 28.1 All unpaid money under the contract becomes immediately payable to the vendor if the default has been made by the purchaser and is not remedied and the costs and interest are not paid. 28.2 The contract immediately ends if: (a) the default notice also states that unless the default is remedied and the reasonable costs and interest are paid, the contract will be ended in accordance with this general condition; and (b) the default is not remedied and the reasonable costs and interest are not paid by the end of the period of the default notice. … 28.4 If the contract ends by a default notice given by the vendor: (a) the deposit up to 10% of the price is forfeited to the vendor as the vendor's absolute property, whether the deposit has been paid or not; and (b) the vendor is entitled to possession of the property; and (c) in addition to any other remedy, the vendor may within one year of the contract ending either: (i) retain the property and sue for damages for breach of contract; or (ii) resell the property in any manner and recovery any deficiency in the price on the resale and any resulting expenses by way of liquidated damages; and … (e) any determination of the vendor's damages must take into account the amount forfeited to the vendor. 282 Special Condition 27.1 deals with the default interest and provides: (a) If the Purchaser defaults in the payment of money under this Contract ("amount"), interest at a rate per annum equal to the aggregate of 4% on the due date for payment of the amount fixed under Section 2 of the Penalty Interest Rates Act 1983 must (without prejudice to the Vendor's other rights) be paid by the Purchaser to the Vendor. (b) Interest is calculated on the amount from the due date for payment until the amount (with interest) is paid. 283 Finally, Special Condition 29 provides: Without limiting Special Condition 28, the Purchaser indemnifies the Vendor for all cost, liability, loss or damage incurred or suffered by the Vendor caused or contributed to by the Purchaser's failure to comply with this Contract including, without limitation, liability incurred under another contract of sale.

Entitlement to the deposit 284 On 22 December 2022, Century Legend notified Mr and Mrs Ripani that settlement was to take place on 17 January 2023. The apartment did not settle on 17 January 2023. 285 On 18 January 2023, Century Legend issued the Notice of Default notifying Mr and Mrs Ripani that they were in default for failing to pay the balance of the purchase price, and that Century Legend intended to exercise its rights arising from the default unless the default was remedied within 14 days, being 1 February 2023. 286 If Mr and Mrs Ripani had been in default for failing to pay the balance of the purchase price and settle the Contract, as alleged in the Notice of Default, the Contract would have come to an end, according to its terms, on 1 February 2023. Furthermore, the failure to remedy the default in the Notice of Default would have had the consequence that the amount of the deposit (being 10% of the purchase price) would have been forfeited to Century Legend pursuant to Special Condition 28.4(a) of the Contract.

Loss and Damage 287 In addition to the deposit, Century Legend claimed interest and damages. Century Legend relied on General Conditions 25 and 28.4 and Special Conditions 27 and 29 of the Contract, which are set out above at paragraphs 280-283. Alternatively, Century Legend sought damages for repudiation of the Contract. 288 According to an "Updated Schedule of Particulars of Loss and Damage", Century Legend quantified its claim for interest and damages in the sum of $4,574,287.63, comprising: (a) $1,580,000, being the deficiency in the resale price of the apartment; (b) $308,000 in two agents' commissions on the resale of the property; (c) $45,452.54 in marketing, advertising and styling expenses on the resale of the property; (d) $35,283.46 in "holding costs", such as owners corporation fees, council rates and utility bills; (e) $44,094.25 in contractual interest from 17 to 31 January 2023; (f) $832,457.38 in borrowing costs on the purchase price of $9,580,000 from 1 February 2023 to the date of resale (7 May 2024), at the rate of 6.88 percent per annum; and (g) $1,729,000 in legal costs. 289 Century Legend's statement of claim included unparticularised items of loss and damage. During opening submissions, Century Legend sought to hand up, and provide to Mr and Mrs Ripani for the first time, a "Schedule of Particulars of Loss and Damage" which included updated and further particulars of Century Legend's loss and damage. 290 The trial did not finish in the time originally allocated. When the trial resumed, Century Legend sought to hand up the Updated Schedule which identified various invoices and other documents by which Century Legend sought to prove the categories of loss referred to above in paragraph 288. The invoices and documents referred to in the Updated Schedule were included in the third supplementary court book. Century Legend sought to tender the Updated Schedule under s 50 of the Evidence Act 1995 (Cth) as proof of its claim for loss and damage. After I expressed doubt as to whether Century Legend could rely on s 50 of the Evidence Act for that purpose, Century Legend sought to prove its claim through Mr Hu and by reference to the underlying documents referred to in the Updated Schedule. 291 I deal with each category of loss and damage in the Updated Schedule in turn below.

Deficiency in the resale price 292 As set out above, General Condition 28.4(c)(ii) of the Contract provided, in effect, that if the Contract ended by a default notice given by the vendor, the vendor was entitled to resell the property and recover any deficiency in the price on resale and any resulting expenses by way of liquidated damages. 293 The apartment was re-sold on or about 6 November 2023 for $8,000,000. Century Legend claimed the difference between the purchase price under the Contract and the purchase price under the subsequent resale, namely $1,580,000 under General Condition 28.4(c)(ii) or as reasonably foreseeable loss resulting from the breach. 294 Mr and Mrs Ripani submitted that the proper measure of damages for breach was the difference between the contract price and the market value of the property at the date of the determination of the Contract, citing Victorian Economic Development Corporation v Clovervale Pty Ltd [1992] 1 VR 596 at 604 (Tadgell J). However, Mr and Mrs Ripani focused on the incorrect date of determination for the purpose of Century Legend's claim for relief, which proceeds on the assumption that the Contract was not rescinded by Mr and Mrs Ripani. Mr and Mrs Ripani did not lead any evidence or suggest that the market value of the property as at the date of the determination of the Contract, in early 2023 on Century Legend's case, would have been more than the price at which it was sold in November 2023. 295 I am satisfied that Century Legend would have been entitled to recover the deficiency in the resale price of $1,580,000, if the Contract had ended because Mr and Mrs Ripani were in breach of the Contract and Century Legend was entitled to serve the Notice of Default, pursuant to General Condition 28.4(c)(ii) of the Contract or by way of damages for repudiation of the Contract. However, the Updated Schedule does not take into account that the deposit would have been forfeited to Century Legend (see paragraph 286 above). In my assessment, any amount awarded in respect of the deficiency in the resale price would need to be adjusted to take into account the deposit forfeited to Century Legend, with the result that Century Legend would be entitled to recover the deficiency in the resale price of $1,580,000 less the deposit of $958,000, namely, $622,000.

Agents' commission on the resale of the apartment 296 Century Legend initially claimed $308,000 for two agents' commissions in connection with the resale of the apartment, pursuant to General Condition 28.4(c)(ii) of the Contract or by way of damages for repudiation of the Contract. 297 It appeared that Century Legend had retained two real estate agents for the resale of the apartment, RT Edgar and D. Property, and the total commission for the two agents was $308,000. Mr and Mrs Ripani submitted that, absent any evidence to explain why Century Legend claimed commission for two real estate agents, Century Legend ought be entitled to recover in respect of the earlier and less substantial invoice of RT Edgar, of $88,000. 298 Century Legend conceded that it was only entitled commission for one real estate agent, and it claimed $220,000 being the commission charged by D. Property, the agent that ultimately sold apartment 1401. I accept that, as between the two agents, it was appropriate for Century Legend to confine its claim to the commission charged by the agent that ultimately sold the apartment. 299 I am satisfied that if the Contract had ended because Mr and Mrs Ripani were in breach of the Contract and Century Legend was entitled to serve the Notice of Default, Century Legend would have been entitled to recover agent's commission in the amount of $220,000 pursuant to General Condition 28.4(c)(ii) of the Contract or by way of damages for repudiation of the Contract.

Marketing, advertising and styling expenses on the resale of the apartment 300 Century Legend claimed $45,452.54 in marketing, advertising and styling expenses associated with the resale of the apartment, pursuant to General Condition 28.4(c)(ii) of the Contract or by way of damages for repudiation of the Contract. 301 Century Legend sought to recover expenses it had incurred in order to resell the apartment, including for marketing and advertising and styling the apartment with furniture. Century Legend relied on various invoices and evidence of Mr Hu to the effect that the invoices had been paid. Mr and Mrs Ripani objected to a "Marketing Schedule" from RT Edgar for fees in the amount of $10,850.24, on the basis that it was not an invoice and there was no evidence that it had been paid. I accept that Century Legend has failed to establish an entitlement to that item and that the amount of its claim should be reduced accordingly. 302 I am satisfied that if the Contract had ended because Mr and Mrs Ripani were in breach of the Contract and Century Legend was entitled to serve the Notice of Default, Century Legend would have been entitled to recover marketing, advertising and styling expenses associated with the resale of the apartment in the amount of $34,602.30 pursuant to General Condition 28.4(c)(ii) of the Contract or by way of damages for repudiation of the Contract.

Holding costs 303 Century Legend claimed $35,283.46 in "holding costs", comprising owners' corporation fees, council rates and utilities bills, pursuant to General Condition 28.4(c)(ii) of the Contract or by way of damages for repudiation of the Contract. 304 Mr and Mrs Ripani objected to this aspect of Century Legend's claim on the basis that, first, Century Legend relied on summaries which Mr Hu had not prepared to establish payment of the invoices for electricity bills and he was not sure how payment was made for the electricity bills. Secondly, Century Legend's claim was calculated on the basis of the total invoiced amounts rather than amounts actually paid by Century Legend. Mr and Mrs Ripani's closing submissions referred to one example of an owners' corporation invoice where Century Legend's evidence as to payment was for a lesser amount than the total invoice claimed. 305 The holding costs comprised owners' corporation fees, council rates and utilities bills. I infer from the fact that the re-sale of the apartment settled on 7 May 2024 that Century Legend paid the owners' corporation fees and council rates which it claimed. However, I accept Mr and Mrs Ripani's submission that Century Legend has not established payment of the electricity bills and I would reduce this item of its claim by $4,656.64. 306 I am satisfied that if the Contract had ended because Mr and Mrs Ripani were in breach of the Contract and Century Legend was entitled to serve the Notice of Default, Century Legend would have been entitled to recover holding costs in the amount of $30,626.82 pursuant to General Condition 28.4(c)(ii) or by way of damages for repudiation of the Contract.

Contractual Interest 307 Century Legend claimed $44,094.25 in contractual interest from 17 January 2023, when Mr and Mrs Ripani failed to settle the purchase of the apartment, to 31 January 2023, when the Contract was terminated according to its terms. 308 Century Legend relied on Special Condition 27 which applies if the purchaser defaults under the Contract. The default interest rate under Special Condition 27.1(a) was 4% plus the rate fixed under s 2 of the Penalty Interest Rates Act 1983 (Vic), which was 10% per annum at the relevant time. Century Legend calculated its claim for default interest at the rate of 14% for the period of default to be $44,094.25. Mr and Mrs Ripani did not object to that calculation. 309 However, Mr and Mrs Ripani submitted that Century Legend was not entitled to interest under Special Condition 27 because Special Condition 27.1(b) makes clear that Special Condition 27 applies if settlement is delayed, but not if completion does not occur at all, as was the case here. Mr and Mrs Ripani relied on Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190 at [193]-[194] (Gleeson JA, with whom Bathurst CJ and Ward JA agreed). The "special condition interest" clause in Galafassi specifically referred to interest being calculated to "the actual date of completion" and was in different terms to Special Condition 27. However, Special Condition 27.1(b) provides that interest under Special Condition 27 is to be calculated on the amount due, "until the amount … is paid". Although the submission was not put in these terms, I consider that Special Condition 27 applied during the period in which the purchaser was in default of payment under the Contract. Indeed, Century Legend calculated its claim for interest from 17 January 2023 to 31 January 2023. As at 31 January 2023, there was no amount "paid" in order for Special Condition 27.1(b) to operate and Special Condition 27 does not apply. 310 I therefore reject Century Legend's claim for interest in the amount of $44,094.25 pursuant to Special Condition 27.

Borrowing costs 311 Century Legend claimed $834,293.46 in borrowing costs on the purchase price of $9,580,000 from 1 February 2023 to the date of resale (7 May 2024) at the rate of 6.88% per annum, pursuant to General Condition 28.4(c)(ii) of the Contract or by way of damages for repudiation of the Contract. 312 As Mr and Mrs Ripani submitted, Century Legend did not explain the basis upon which it said it was entitled to such relief. Century Legend's closing submissions merely stated that when Mr and Mrs Ripani did not settle the purchase of the apartment, Century Legend continued to incur borrowing costs in respect of the settlement sum, which could not be repaid to the lender on settlement. Century Legend claimed borrowing costs on the basis of the 6.88% rate incurred on the JD Group Victoriana Residual Stock Facility that the settlement amount would have been paid into, had settlement occurred, from the date the Contract was terminated, on 1 February 2023. 313 Century Legend did not explain how, and I am not satisfied that, borrowing costs are "expenses" for the purpose of General Condition 28.4(c)(ii) of the Contract. 314 Mr and Mrs Ripani submitted that it is not the general rule that a purchaser's breach will entitle the vendor to damages for interest payable on the vendor's mortgage. The vendor must establish that there are special circumstances, such as knowledge on the part of the purchaser of a particular situation in which the vendor is placed that would make it apparent to the purchaser that a breach would cause special damage to the vendor: Bridges v McPhail (1977) 3 BPR 9317 at 9318 (Needham J). 315 In order to recover borrowing costs, a vendor must establish that such losses are recoverable under one of the limbs in Hadley v Baxendale (1854) 9 Ex 341; (1854) 156 ER 145; Carpenter v McGrath (1996) 40 NSWLR 39 at 44 (Clarke JA),60-61 (Sheller JA),73 (Cole JA); Palasty v Parlby [2007] NSWCA 345; (2008) 13 BPR 25,311 at [48] (Mason P, with whom Tobias JA and Handley AJA agreed). 316 Ongoing interest payments on a property after termination of a contract for breach are not in usual circumstances regarded as a loss flowing from the breach. As a result, the second limb in Hadley v Baxendale is relevant, meaning the vendor must establish such loss to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it: Carpenter at 73 (Cole JA); Jampco Pty Ltd v Cameron (No 2) (1985) 3 NSWLR 391 at 396 (Young J). The mere fact that the purchaser knows the vendor has mortgaged the property is insufficient to remove the case from the general principle that the damages payable by the purchaser do not include interest payable on the vendor's mortgage: Eighth SRJ Pty Ltd v Merity (1997) 7 BPR 15,189 at 15,200 (Young J). 317 The need for special circumstances, to quote Needham J, must be emphasised: Higgins at [115] (Barrett J). Century Legend did not address this issue. It was not put to Mr and Mrs Ripani that they were aware of Century Legend's financing arrangements. Nor was any submission made that Mr and Mrs Ripani had in contemplation loss that Century Legend might suffer by reason of the inability to use the proceeds of sale to reduce its finance facility. 318 In my assessment, Century Legend has not established an entitlement to recover borrowing costs pursuant to General Condition 28.4(c)(ii) or by way of damages for repudiation of the Contract.

Legal costs 319 Century Legend claimed legal costs in the amount of $1,729,000 on an indemnity basis pursuant to Special Condition 29 of the Contract or by way of damages for repudiation of the Contract. 320 Century Legend tendered, without objection: (a) a statement of account from Patrick and Associates, solicitors, with time entries from 28 May 2020 to 27 October 2022, with a total amount of $921,547.90; and (b) a statement of account from Mills Oakley, solicitors, with time entries from 28 October 2022 to 2 May 2024, with a total amount of $1,491,343.46. 321 Century Legend informed the Court that the amount of $1,729,000 did not include legal costs associated with the appeal or GST, which explains the discrepancy between the amount claimed and the total amount in the statements of account. 322 Mr Hu confirmed that Century Legend claimed its legal costs, and he simply identified the above statements of account, but otherwise gave no evidence in relation to the statements or the nature of the legal work performed by Patrick and Associates and Mills Oakley. 323 The Patrick and Associates statement simply contains line items listing invoices rendered by Patrick and Associates between May 2020 and October 2022. The statement contains a "Matter Description" that refers to "Claim by Walter and Nina Ripani", but otherwise contains no detail in relation to the nature of the work performed by Patrick and Associates. The Mills Oakley statement simply refers to a list of "Bills" for the "Client Century Legend Pty Ltd" from October 2022 to May 2024, but otherwise contains no detail in relation to the nature of the work performed by Mills Oakley. 324 Special Condition 29 requires Mr and Mrs Ripani to indemnify Century Legend for all "cost, liability, loss or damage… caused or contributed to" by their failure to comply with the Contract. The statements provide no explanation as to the nature of the work performed by Patrick and Associates, or Mills Oakley, and no explanation was provided by Mr Hu. As Mr and Mrs Ripani submitted, some of the invoices referred to in the statements of account pre-date any contractual breach, and would appear to relate to legal work involved in resisting Mr and Mrs Ripani's claims against Century Legend. 325 I am not satisfied that Century Legend has established that the legal costs which Century Legend says it has incurred were caused by the alleged failure to comply with the Contract. I am therefore not satisfied that Century Legend is entitled to recover the legal costs claimed in the amount of $1,729,000 pursuant to Special Condition 29 or by way of damages for repudiation of the Contract.

CONCLUSION 326 For the above reasons, I have concluded that Mr and Mrs Ripani's claim in the first proceeding should succeed and I would order that the Contract be rescinded. In light of Mr and Mrs Ripani's entitlement to rescission of the Contract, Century Legend's claim in the second proceeding must fail. I will hear the parties in relation to orders to give effect to these reasons and as to costs. I certify that the preceding three hundred and twenty-six (326) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Neskovcin.

Associate: Dated: 18 October 2024 ANNEXURE A RENDER ANNEXURE B ROTHELOWMAN PLAN ANNEXURE C OPTION A FLOOR PLAN ANNEXURE D OPTION A/B FLOOR PLAN ANNEXURE E OPTION B FLOOR PLAN ANNEXURE F OPTION C FLOOR PLAN ANNEXURE G OPTION E FLOOR PLAN ANNEXURE H OPTION I FLOOR PLAN ANNEXURE I SCHEDULE